Administrative Law II Course Manual - Alberta Law II Manual 2013... · MODULE 1 ... Case Arguments...

Administrative Law II

for

Assessment Review Board Members

and the

Municipal Government Board

Members

The materials are Copyright © by the Government of Alberta.

All rights reserved. No part of this publication may be reproduced or transmitted in any form or

by any means, electronic or mechanical, including photocopy, recording, or any information

storage and retrieval system, without permission in writing from Alberta Municipal Affairs.

Requests for permission to make copies of any part of this document or attachments thereto

should be sent to:

Alberta Municipal Affairs

Local Government Services

Assessment Services Branch

15th Floor, Commerce Place

10155 102 Street

Edmonton AB T5J 4L4

P: 780-422-1377

F: 780-422-3110

Department forms, publications & resources can be found at:

www.municipalaffairs.alberta.ca

(Under “Property Assessment & Taxation” tab, “Publications” tab)

ISBN 978-1-4601-0377-7 Print

ISBN 978-1-4601-0378-4 Electronic

http://municipalaffairs.alberta.ca/mc_assessment_complaints_and_appeals.cfm

Table of Contents

Municipal Affairs Administrative Law II of 99

Government of Alberta September 2012

Contents Caution on the Use of the Materials ................................................................................................................................. 6

LEARNING OBJECTIVES........................................................................................................................................... 6

COURSE DESCRIPTION ........................................................................................................................................... 6

PREAMBLE ............................................................................................................................................................. 9

MODULE 1 ........................................................................................................................................................... 10

CONDUCT AND COLLABORATION ........................................................................................................................ 10

MAINTAINING INDEPENDENCE AND ACCOUNTABILITY THROUGH ETHICAL CONDUCT ........................................ 10

Municipal Government Board Mission Statement: ............................................................................................ 11 Alberta Generic Code of Conduct for a Public Agency: ....................................................................................... 12 Tips for Working Collaboratively With Other ARB Staff and Members .............................................................. 17

EXERCISE # 1 – GROUP DISCUSSION ..................................................................................................................... 18

(15 MINUTES) ...................................................................................................................................................... 18

MODULE 2 ........................................................................................................................................................... 19

ADMINISTRATIVE LAW & NATURAL JUSTICE ........................................................................................................ 19

What is Administrative Law? ............................................................................................................................. 19 Role of an Assessment Review Board ............................................................................................................................. 19

Natural Justice and Procedural Fairness ............................................................................................................ 20 The Rules of Natural Justice ............................................................................................................................................ 20 Procedural Fairness ......................................................................................................................................................... 20

The Requirement of Fairness in the Assessment Complaint Process .................................................................. 21 The Right to Be Heard ........................................................................................................................................ 21

EXERCISE # 2 – FAIRNESS: RIGHT TO BE HEARD .................................................................................................... 22

Bias ..................................................................................................................................................................... 23 Two Types of Bias ............................................................................................................................................................ 23 What Creates a Perception of Bias? ................................................................................................................................ 23 The Test for Perception of Bias ....................................................................................................................................... 24 Exceptions to Bias ........................................................................................................................................................... 25 Tips around Bias .............................................................................................................................................................. 25

EXERCISE # 3 – BIAS ............................................................................................................................................. 27

______________________________________________________________________________ ................. 27 A Decision from the Person(s) Who Heard the Case .......................................................................................... 27

Best practice tips: ............................................................................................................................................................ 28 The Big Picture for Assessment Review Boards .............................................................................................................. 29 Know Your Legislation ..................................................................................................................................................... 30

EXERCISE # 4 – KNOW YOUR LEGISLATION ........................................................................................................... 31

THE CONCEPT OF JURISDICTION .......................................................................................................................... 32

EXERCISE # 5 – JURISDICTION ............................................................................................................................... 34

THE CONCEPT OF HEARING STYLE ........................................................................................................................ 36

Prosecutorial Style .......................................................................................................................................................... 36 Inquisitorial Style ............................................................................................................................................................ 36 Adversarial Style ............................................................................................................................................................. 36

THE CONCEPT OF DECISIONS ................................................................................................................................ 37

Challenges to Decisions ................................................................................................................................................... 37 Court Review of Decisions............................................................................................................................................... 37

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_____________________________________________________________________________________ Municipal Affairs Administrative Law II of 99


MODULE 3 – ASSESSMENT REVIEW BOARD HEARINGS ........................................................................................ 39

OVERVIEW - A TYPICAL HEARING PROCESS .......................................................................................................... 39

Tips on hearings .............................................................................................................................................................. 41

THE ARB HEARING ............................................................................................................................................... 41

1. Panel Member Preparation ...................................................................................................................... 41 2. Objections to Jurisdiction or Procedure .................................................................................................... 41

Tips for Dealing with Objections ..................................................................................................................................... 42 3. Adjournments and Postponements .......................................................................................................... 42 4. Fairness or Efficiency ................................................................................................................................ 43 5. Access to Information and Disclosure ....................................................................................................... 43

Pre-Hearing Filing or Disclosure of Potential Evidence ................................................................................................... 43 Access to Information – MGA sections 294, 295, 299 and 300 ....................................................................................... 43

6. Evidence .................................................................................................................................................... 45 Evidence Is ...................................................................................................................................................................... 45 Not Bound by Strict Rules of Evidence ............................................................................................................................ 45 Admitting Evidence ......................................................................................................................................................... 46 How to Mark an Exhibit: ................................................................................................................................................. 46 Relevance of Evidence .................................................................................................................................................... 46 Weight of Evidence ......................................................................................................................................................... 46 One Common Exception in ARB Hearings - Hearsay Evidence ........................................................................................ 47 Affidavits ......................................................................................................................................................................... 48

6. The Role of Witnesses .................................................................................................................................... 48 Types of Witnesses ......................................................................................................................................................... 48 Witnesses can expect questions about: .......................................................................................................................... 48 Expert Witnesses............................................................................................................................................................. 49 Tips for panel members around witnesses: .................................................................................................................... 49 Compelling Attendance of Witnesses or the Production of Documents ......................................................................... 50 Compelling Attendance of Witnesses ............................................................................................................................. 50 Requiring Production of Documents ............................................................................................................................... 50

7. Working with Translators .............................................................................................................................. 51 SAMPLE SUBPOENA /NOTICE TO ATTEND / PRODUCTION OF DOCUMENTS .............................................................................. 51

8. Case Arguments ............................................................................................................................................. 52 9. Legal Counsel ................................................................................................................................................. 52

Counsel as Advocate ....................................................................................................................................................... 52 Counsel as Advisor to the Panel ...................................................................................................................................... 52

10. Note Taking .................................................................................................................................................. 53 Tips for the panel’s notes ................................................................................................................................................ 53

11. Confidential Information .............................................................................................................................. 53 Panels and Staff Need to ................................................................................................................................................. 53

12. Representatives and Agents ......................................................................................................................... 54

EXERCISE # 6 – HEARING PROCESS ....................................................................................................................... 55

TIPS AROUND HEARINGS ..................................................................................................................................... 61

Before: ............................................................................................................................................................................ 61 During: ............................................................................................................................................................................ 61 After: ............................................................................................................................................................................... 61

MODULE 4 – DECISION MAKING AND WRITING ................................................................................................... 63

DECISION MAKING ............................................................................................................................................... 63

1. Identifying the issues in support of the matters for the complaint. ..................................................................... 63 2. Identifying the legislation and framing the issues/questions and conditions or legislative requirements of each issue 63 3. Identifying the relevant evidence and making findings of fact on the evidence .................................................. 63 4. Applying the facts to the legislation to reach conclusions and expressing the decision maker’s rational for the conclusion. ...................................................................................................................................................................... 64

https://ext.sp.mah.gov.ab.ca/LGS/ASB/RAP/ARBTraining/Assessment%20Review%20Board%20Training/2013%20Training/Administrative%20Law%20II/2013%20Archive/Admin%20Law%20II%20Manual%202013.docx#_Toc334535282

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5. Reaching the decisions and formulating the directions for implementation ....................................................... 64 Weighing the Evidence and Making Findings of Fact ...................................................................................................... 69 Decision Making Tips ...................................................................................................................................................... 70

DECISION WRITING .............................................................................................................................................. 71

A Written Decision Is... ....................................................................................................................................... 71 Why ARB’s Write Decisions? .............................................................................................................................. 71 Who do Panels Write For? .................................................................................................................................. 71 What Defines a Well Written Decision? ............................................................................................................. 72 Basic Pieces of a Written Decision ...................................................................................................................... 72

Sample Decision Template for Assessment Review Boards ............................................................................................ 74 Tips for the Author .......................................................................................................................................................... 78 Reviewing a Decision in Draft ......................................................................................................................................... 78 Tips for Commenting on a Decision Written by Someone Else ....................................................................................... 78

Costs and Penalties ............................................................................................................................................ 78 Tips When Dealing With Costs or Penalties .................................................................................................................... 79

EXERCISE #7 - DECISION MAKING & WRITING ...................................................................................................... 80

BACKGROUND/SUMMARY: ................................................................................................................................ 80 PRELIMINARY ISSUES: ........................................................................................................................................ 81

REFERENCES AND RESOURCES ............................................................................................................................. 83

A USER'S GUIDE TO LEGISLATION .................................................................................................................................... 85 Statutes of Alberta: annual volumes ............................................................................................................................... 85 Statutes of Alberta: loose-leaf ........................................................................................................................................ 85 The Alberta Gazette Part II .............................................................................................................................................. 85 Other Formats ................................................................................................................................................................. 85 How to cite statutes (Acts) .............................................................................................................................................. 86 How to cite regulations ................................................................................................................................................... 86 Interpretation Act ........................................................................................................................................................... 86 Reference Materials ........................................................................................................................................................ 87 Proclamation Tables - (printed on white paper) ............................................................................................................. 87 Table of Public Statutes - (printed on pink paper) .......................................................................................................... 87 Table of Private Statutes of the Province of Alberta - (annual volume only: printed on blue paper) ............................. 87 RSA 2000 Schedules - (loose-leaf statutes) ..................................................................................................................... 87 Organization of a Statute (Act) ....................................................................................................................................... 87

ATTACHED DOCUMENTS: .............................................................................................................................................. 90

Objectives



Caution on the Use of the Materials

These materials have been prepared for informational and educational purposes and do not constitute

legal advice. They are intended as an educational aid for persons in administrative tribunal work, not a

substitute for any professional advice. Before acting on this information, readers should consult their own

statutes and policies, or seek out the relevant professional assistance.

.

Learning Objectives

Through interactive exercises, case studies and a hands-on review of forms and procedures, you will learn

about:

o The importance of ethical conduct related to assessment review boards,

o What is involved in the hearing process, and

o The principles of good decision making and writing.

In addition, the objective of this workshop is to develop a basic understanding of the administrative

obligations when processing a complaint, the principles of fair process in an assessment hearing process,

working with an assessment review board panel and supporting decision making and writing. After this

workshop, participants will have:

o Examined obligations when processing a complaint and preparing for and participating in

a hearing,

o Resolved potential issues during the processing of a complaint,

o Applied the basic principles of fairness in a hearing scenario,

o Made a decision using an integrated decision making model, and

o Written a decision using a decision writing model and standards.

Course Description

Administrative Law II is a two-day course for members of Assessment Review Boards (ARB) and the

Municipal Government Board (MGB). This course is designed to provide participants with a basic

understanding of administrative law principles and provide the basic skills required in their roles and

responsibilities under Alberta‟s legislative framework. The course is a companion course to Principles of

Assessment I (for ARB members) and Principles of Assessment II (for MGB members) that focus on the

basic principles of property assessment in Alberta.

Although the MGB and ARB‟s hear different types of complaints, the tenets of administrative law and the

governing legislation are similar. In this manual, case studies and legislative references are generally

directed towards ARB members. An MGB member may participate in a hearing as the provincial member

on a composite assessment review board, and/or as a member of a MGB panel. Therefore, the MGB

member when taking the course should also reference legislation related to the Municipal Government

Board in Part 12 of the Municipal Government Act (MGA).

Objectives



Course Content

The Administrative Law II course consists of four modules.

Module 1 – Conduct & Collaboration

In this module participants learn about the importance of maintaining independence and accountability.

This module will also describe the code of professional and ethical responsibilities for members of an

assessment review board, conflict of interest, and hearing conduct. Participants also learn techniques that

will enhance ways to work collaboratively with ARB administration and other ARB members.

Module 2 – Administrative Law & Natural Justice

In this module participants are introduced to administrative law, the principles of natural justice, and bias.

Participants also learn about their jurisdiction and authority, as well as the related legislation pertaining to

assessment review boards. The different jurisdictions of assessment review boards, and hearing styles

will be examined.

Module 3 – Assessment Review Board Hearings

This module provides an overview of assessment complaint hearing process. Participants will learn about

the pre-hearing preparation and prescribed forms. Preliminary matters, such as adjournments and

postponements, access to information, evidence and the role of witnesses. Legal counsel, note taking, and

confidential information are also discussed.

Module 4 – Decision Making & Writing

Decision making and writing are processes that will be presented in this module. The components of a

decision are not only legislated, but the history of administrative law has evolved to require specific

information be contained in them. A case study will be used to demonstrate the process models used. The

application of costs and penalties will also be discussed as part of the decision making process.

Learning is reinforced through exercises, case studies and take-away checklists that assist with both the

pre-hearing and hearing processes.

Evaluation

An ARB or MGB member must complete this course and the Principles of Assessment I (ARB) or the

Principles of Assessment II (MGB) course to be qualified to participate as a panel member in a hearing

under their jurisdiction. Full participation in the course and exercises is required and a passing grade on

the final examination, to be presented in class, must be obtained.

Terminology



Terminology

Words and acronyms used throughout this document have the following meanings, unless specifically

noted otherwise:

Administrator – the administrator of the Municipal Government Board or any delegated person

referred to in section 486(4) of the Municipal Government Act.

ARB – assessment review board

CARB – composite assessment review board

Clerk – the clerk of the assessment review board, appointed pursuant to section 455 of the MGA.

LARB – local assessment review board

MGA or Act – Municipal Government Act, Revised Statutes of Alberta 2000 Chapter M-26

MRAC – Matters Relating to Assessment Complaints Regulation (AR 310/2009)

MRAT – Matters Relating to Assessment and Taxation Regulation (AR 220/2004)

IA – Interpretation Act, Revised Statutes of Alberta 2000 Chapter I-8

Preamble



Preamble

In order to perform your duties effectively, you need to know and be familiar with the structure of written

legislation.

How Acts and regulations are divided up

Looking at the “Table of Contents” at the front of an Act or regulation, you will see that it is divided into

“Parts” which are further divided into “Divisions”. Under each Division, sections are listed in numerical

order as they appear in the Act or regulation. It does not list the page numbers where these sections are

located. The index at the back of the Act lists the subject matter in alphabetical order, but like the table of

contents, only references the section of the Act or regulation that deals with the subject matter. When

searching for a specific section of legislation, that section will be referenced at the top left hand corner of

the page in the Act or regulation.

Sections of legislation are further broken down, and when referencing legislation, a specific terminology

is used.

453(1) In this Part,

(a) “assessment notice” includes an amended assessment

notice and a supplementary assessment notice;

(b) “assessment roll” includes a supplementary assessment

roll;

(c) “composite assessment review board” means an

assessment review board consisting of

(i) one provincial member and 2 other members who are

not provincial members, or

(ii) subject to section 454.2(3), one provincial member;

The hi-lighted section would be stated as “section 453, subsection 1, clause c, sub-clause i” and written as 453(1)(c)(i).

* See Users Guide to Legislation in References and Resources for more information

section

subsection

clause

subclause

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Module 1

Conduct & Collaboration

Maintaining Independence and Accountability through Ethical Conduct

Assessment review board (ARB) clerks and board members are appointed by a municipality under the

legislation to:

administer the complaint process

hear and decide cases

apply the legislation and procedures of the ARB

interpret the legislation where required

make consistent decisions, and

provide fair process to the parties.

To carry out its legislative role, an assessment review board must be independent of its appointing

authority. At the same time, the ARB and its members are accountable for:

the decisions they make

the hearings they conduct

confidentiality of the information received

the procedures it adopts and implements

the budget under its authority

the collegial support of its members and staff

the reputation of the process, ARB and panel members, and

the conduct of themselves and all parties at a hearing.

Having a code of conduct in place can assist the ARB (its members and staff) to meet reasonable

standards and goals in its accountability. A code of conduct can be broad or general, detailed or

simplified. ARB‟s may express the code of conduct in different ways, such as in a particular document

named a code or through other ARB publications like the mission and goals. A code of conduct should be

continually reviewed, refined and refreshed to meet current standards and demands.

It is important for an ARB to develop a code of conduct to ensure all Albertans have access to a fair and

independent process with strict adherence to the principles of natural justice and in which all individuals

are treated fairly and without bias in an open, orderly and impartial manner. This is important because

misconduct or procedures that affect the rights of the parties to a complaint can result in the decision of a

board being overturned on appeal to the Court of Queen‟s Bench.

Remember that your board‟s procedures should align with your code of conduct, but more importantly

must meet all legislative requirements. An ARB must extend the accountability and standards of their

code of conduct to the participants in a hearing.

The following pages contain an example of the “Mission, Vision and Goals” statement for the Municipal

Government Board, and a generic Code of Conduct that you may use to help develop one for your board.

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Municipal Government Board Mission Statement:

MISSION

The Municipal Government Board shall provide timely, independent, quasi-judicial appeal adjudication to

all parties in the areas of assessment matters, planning, subdivision appeals, inter-municipal disputes and

annexation recommendations, that yields fairness and equity consistent with the authority of the

Municipal Government Act.

VISION

The Alberta Municipal Government Board will be a leader among tribunals with a reputation for

excellence in adjudication. All Albertans shall have access to a fair and independent process with strict

adherence to the principles of natural justice and in which all individuals are treated fairly and without

bias in an open, orderly and impartial

This Vision will be attained by:

1. providing benchmark decisions.

2. advocating excellence and providing guidance in decision making to stakeholders.

3. demonstrating efficiency, effectiveness and timeliness in the appeal process.

4. respecting rights of individuals, businesses, corporations and municipalities.

5. ensuring that all property assessments are equitable, fair and correct in accordance with

legislation.

6. striving for consistency and predictability based on evidence presented.

V A L U E S

In service to stakeholders the Municipal Government Board values:

1. our strength through the diversity of our members and the quality of our staff.

2. the right to natural justice and timeliness in the adjudication process.

3. respect for and responsiveness to our stakeholders.

4. provision of quality service to stakeholders.

5. consistent interpretation of legislation.

6. commitment to the Code of Ethics and Conduct.

7. organizational alignment and a team approach to problem-solving.

8. innovative use of automated information services.

9. continuous organizational development, self-improvement and self-evaluation.

10. enriched and rewarding work environment which recognizes productivity.

G O A L S

1. Organizational Effectiveness: The Municipal Government Board will be an effective

organization, roles and accountabilities will be clear and understood, and processes and

relationships will be purposely aligned.

2. Processes: The Municipal Government Board will reflect accessibility, efficient scheduling,

timely decisions and fair hearing procedures consistent with the principles of natural justice.

3. Quality Decisions: Municipal Government Board decisions will be legislatively correct, well

reasoned, consistent with evidence and relevant case law and will be issued on a timely basis.

4. Stakeholder Satisfaction: The Municipal Government Board will be proactive and responsive to

stakeholder feedback and satisfaction. A stakeholder is defined as all people who have a vested

interest in the outcomes of the Municipal Government Board. This would include Board

members, staff, and all external parties who come before the MGB, the department and the

Minister.

5. Budget Plan: The Municipal Government Board budget will reflect the business plan and will

provide for effective and efficient use of financial resources to support MGB priorities.

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Alberta Generic Code of Conduct for a Public Agency:

The Generic Code of Conduct for a Public Agency (Generic Code) is a sample Code of

Conduct for use by agencies.

The Alberta Public Agencies Governance Act (APAGA) requires that each agency have a

Code of Conduct (Code) for its members and employees and have a process for

administering it. The Generic Code meets the requirements of the APAGA and may be

used as a starting point to assist agencies in developing a Code that reflects their unique

situation and mandate.

The document, Guidelines for Developing a Code of Conduct for a Public Agency,

provides suggestions and examples to consider when modifying this Generic Code or

developing a new Code.

[NAME OF AGENCY]

CODE OF CONDUCT

I. Preamble

The Code of Conduct (Code) for [name of agency] applies to all members and employees. The Code

reflects a commitment to the agency‟s values and provides a framework to guide ethical conduct in a

way that upholds the integrity and reputation of the agency. Members and employees are expected to

behave in a way that aligns with this Code. They understand that this Code does not cover every

specific scenario. Therefore, they use the spirit and intent behind this Code to guide their conduct, and

exercise care and diligence in the course of their work with the agency.

To demonstrate commitment to transparency and accountability, this Code is available to the public

on the agency‟s website.

II. Core Values

a. Members and employees act with impartiality and integrity.

b. Members and employees demonstrate respect and accountability.

c. [Other values].

III. Guiding Principles

These principles guide the behaviour and decisions of members and employees:

a. The actions and decisions of members and employees are made to promote the public interest

and to advance the mandate and long-term interests of the agency.

b. Members and employees are responsible stewards of public resources.

c. To serve the public interest, members and employees have a responsibility to uphold the

agency‟s mandate.

d. Members and employees have a responsibility to act in good faith and to place the interests of

the agency above their own private interests.

e. Members and employees behave in a way that demonstrates that their behaviour and actions are

fair and reasonable in the circumstance.

f. Members and employees enjoy the same rights in their private dealings as any other Albertan,

unless it is demonstrated that a restriction is necessary in the public interest.

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g. When a member or employee, as an individual, is subject to more than one code of conduct, the

member or employee must consider the expectations in all. Members and employees

understand that this Code is not intended to conflict with other Codes of Conduct, and will

discuss any potential conflicts with their supervisor or the Code Administrator.

h. The Code applies to all members and employees unless a specific exemption is granted by the

Code Administrator.

i. Members and employees know that when they become aware of a real or apparent conflict of

interest, they must at the first opportunity disclose this conflict to their supervisor or the Code

Administrator.

j. Members and employees understand that disclosure itself does not remove a conflict of interest.

k. Members and employees encourage their colleagues to act fairly and ethically and know that

they are able to raise concerns about a suspected breach by another to their supervisor or the

Code Administrator without fear of reprisal.

l. Members and employees know that breaches of this Code may result in disciplinary action, up

to and including removal of the member or termination of the employee.

m. Members and employees know that if they have any questions about the Code, or are not sure

how to apply these principles, they should consult with their supervisor or the Code

Administrator.

n. Each member and employee confirms [on an annual basis] their understanding of, and

commitment to, the Code‟s expectations.

IV. Behavioural Standards

Behavioural standards help members and employees make appropriate decisions when the issues they

face involve ethical considerations. Behavioural standards cannot cover all scenarios but provide

guidance in support of day-to-day decisions. All members and employees must adhere to the

following standards:

a. Members and employees must not engage in any criminal activity and comply with all

relevant laws, regulations, policies and procedures.

b. Members and employees must not use their status or position with the agency to influence or

gain a benefit or advantage for themselves or others.

c. Member and employee conduct contributes to a safe and healthy workplace that is free from

discrimination, harassment or violence.

d. Members and employees must not use drugs or alcohol in a way that affects their

performance and safety or the performance and safety of their colleagues, or that negatively

impacts the reputation or operations of the agency.

e. Members and employees must act in a way that is consistent with the agency‟s protocols on

public comment.

f. Members and employees must take reasonable steps to avoid situations where they may be

placed in a real or apparent conflict between their private interests and the interests of the

agency. In other words, actions or decisions that members and employees take on behalf of

the agency must not provide them with an opportunity to further the private interests of

themselves, their families, their business associates or others with whom they have a

significant personal or business relationship.

1. Confidential Information

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Members and employees must respect and protect confidential information, use it only

for the work of the agency and do not use it for personal gain. Members and

employees must comply with protocols that guide the collection, storage, use,

transmission and disclosure of information.

2. Gifts and Gratuities

Members and employees must not accept or receive gifts and gratuities other than the

normal exchange of gifts between friends or business colleagues, tokens exchanged as

part of protocol or the normal presentation of gifts to people participating in public

functions.

3. Outside Activities

Members and employees must avoid participating in outside activities that conflict with

the interests and work of the agency. For example:

i. Business Interests: Members and employees must not hold interests in a

business directly or indirectly through a relative or friend that could benefit

from, or influence, the decisions of the agency.

ii. Employment: Members must not take employment, and employees must not

take supplementary employment, that affects their performance or impartiality

with the agency.

iii. Political Activity: Members and employees may participate in political

activities including membership in a political party, supporting a candidate for

elected office or seeking elected office. However, they must not participate

directly in soliciting contributions for a political party. In addition, any

political activity must be clearly separated from activities related to the work

for the agency, must not be done while carrying out the work of the agency and

must not make use of agency facilities, equipment or resources in support of

these activities.

iv. Volunteer Activity: If members and employees are involved in volunteer

work, the activity must not influence or conflict with decisions relating to the

agency.

4. Pre-Separation

Members and employees considering a new offer of appointment or employment must

be aware of and manage any potential conflicts of interest between their current

position and their future circumstance, and must remove themselves from any decisions

affecting their new appointment or employment.

5. Post-Separation

Once members and employees have left the agency, they must not disclose confidential

information that they became aware of during their time with the agency and must not

use their contacts with their former colleagues to gain an unfair advantage for their

current circumstance.

6. Property

Members and employees may have limited use of the agency‟s premises and equipment

for authorized incidental purposes providing such use involves minimal additional

expense to the agency, must not be performed on the member or employee‟s work time,

must not interfere with the mission of the agency and must not support a personal,

private business.

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7. Related Persons or Parties

Members and employees must avoid dealing with those in which the relationship

between them might bring into question the impartiality of the member or employee.

V. Administrative Processes

Administrative processes help members and employees manage ethical dilemmas, including any real

or apparent conflict of interest concerns.

a. Administration

The Code Administrator for members and the Chief Executive Officer (CEO) is the [e.g.,

Chair; Governance Committee]. The Code Administrator for employees other than the CEO

is the [e.g., CEO; Governance Committee].

The Code Administrator receives and ensures the confidentiality of all disclosures and

ensures that any real or apparent conflict of interest is avoided or effectively managed. As

well, the Code Administrator is responsible for providing advice and managing all concerns

and complaints concerning potential breaches of the Code, including conflicts of interest

within the agency. Even though an agency may have a delegated process for responding to

and managing concerns, the Code Administrator is responsible for ensuring procedural

fairness.

b. Disclosure

It is the responsibility of each member and employee to declare in writing to the Code

Administrator those private interests and relationships that they think could be seen to impact

the decisions or actions they take on behalf of the agency. When there is a change in their

responsibilities within the agency or in their personal circumstance, members and employees

shall disclose in writing any relevant new or additional information about those interests as

soon as possible. Where a real or apparent conflict of interest cannot be avoided, members

and employees must take the appropriate steps to manage the conflict.

Members and employees disclose these real or apparent conflicts of interest so that the Code

Administrator is aware of situations that could be seen as influencing the decisions or actions

they are making on behalf of the agency. This provides members and employees, following a

review by the Code Administrator, an opportunity to take action to minimize or remove the

conflict. To actively manage a conflict of interest, options include:

removing themselves from matters in which the conflict exists or is perceived to

exist;

giving up the particular private interest causing the conflict; and,

in rare circumstances, resigning their position with the agency.

c. Reporting a Potential Breach by Another

Members and employees are encouraged to report in writing a potential breach of this Code

by another to their supervisor for employees or the Code Administrator for members and

employees. When reporting a potential breach in good faith and with reasonable grounds,

members and employees are protected from retaliation for such reporting.

d. Responding to Potential Breach

Once a potential breach has been reported, the agency‟s procedures for responding to and

managing a potential breach will be promptly initiated. The Code Administrator will review

the circumstance and details of the potential breach and will notify the alleged member or

employee. The alleged member or employee has the right to complete information and the

right to respond fully to the potential breach. The identity of the reporter will not be

disclosed unless required by law or in a legal proceeding. The Code Administrator makes a

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decision and completes a report of the review in a timely manner. The decision may range

from finding no potential breach to one that reveals suspected criminal conduct.

e. Consequences of a Breach

Members and employees who do not comply with the standards of behaviour identified in

this Code including taking part in a decision or action that furthers their private interests, may

be subject to disciplinary action up to and including removal of the member or termination of

the employee.

f. Review of a Decision

Members and employees can request in writing that the [e.g., Ethics Commissioner; external

party] review a decision that has been made by the Code Administrator about a real or

apparent breach of the Code, including a conflict of interest involving that member or

employee.

VI. Other Resources

a. Where to Get Advice

When members and employees require advice and guidance in determining whether

misconduct or a conflict exists, or need clarification, they may discuss their issue with:

A supervisor for employees

The Code Administrator for members and employees

[Other - e.g. ethics officer, ethics committee, compliance officer]

b. Questions to Consider

When members and employees are faced with a difficult situation, the following questions

may help them decide the right course of action:

Have I reflected on or consulted with my supervisor or the Code Administrator

about whether I am compromising the Code‟s values, principles or behavioural

standards?

Have I considered the issue from a legal perspective?

Have I investigated whether my behaviour aligns with a policy or procedure of the

agency?

Could my private interests or relationships be viewed as impairing my objectivity?

Could my decision or action be viewed as resulting in personal gain, financial or

otherwise?

Could my decisions or actions be perceived as granting or receiving preferential

treatment?

VII. Affirmation

The Code of Conduct for [name of agency] was introduced on [date] and is reaffirmed [annually] by

the Board to ensure it remains current and relevant.

Module 1



Tips for Working Collaboratively With Other ARB Staff and Members

It sounds like motherhood and apple pie to say that everyone in an ARB has to work collaboratively to

achieve satisfactory results. Some tips for working collaboratively include:

work from the same information – different information generates differing viewings

and reactions

set clear processes and time lines

identify clear role descriptions and expectations

vocalize expectations – do not encourage assumptions

focus on the bigger picture and goals, not personal agendas, personal priorities or

personal pride

when cases are expected to be difficult, work out a plan for dealing with the case

proactively and consult the parties as needed

solicit information about what did not happen as expected – be prepared to accept

reasonable explanations and give a little leeway for different approaches or methods

focus on the project and actions, respect the personalities and feelings – remember

you are dealing with people

be prepared to examine alternate ways of doing the work – there may be more than

one way to accomplish the task

treat everyone else as you would wish to be treated

protect the reputation of the board and the credibility of its processes

stay involved – inactive persons lose touch

do your part and do it well

share the praise and the pain equally

appreciate the equal roles of the three panel members; the presiding officer may

facilitate the discussion but needs to also express his/her own views and should not

be acting as a controller or superior person on the panel.

Module 1



Exercise # 1 – Group Discussion (15 Minutes)

1. Give two examples of what might constitute misconduct by board members or staff.

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

2. What issues may arise from not collaborating with other board members or staff?

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

3. The regular ARB clerk was absent on leave, and the acting clerk forgot to notify the complainant of

the disclosure dates. One of the panel members was very upset that they were required to attend a

hearing that was not ready to proceed. He vents his anger at the acting clerk.

What can the ARB do to resolve the situation?

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

4. You are arriving at the hearing and discover that your pastor is one of two people attending the

hearing. The pastor tells you that this is the first hearing he has attended and doesn‟t know what to

expect. He asks if you know anything about it and if you could help them.

What do you do or say? Why?

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

5. After the hearing you return to your regular business/job. The next day, you receive a call from the

Pastor, who thanks you for being so open minded in the hearing. He says he knows he will get a call

and letter from the ARB about the decision, but asks if you can remind him when the decision will be

released, and could you give him a hint into what the decision will say.

How do you react/what do you do? Why?

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

Module 2



Module 2

Administrative Law & Natural Justice

Participants learn about the importance of maintaining independence and accountability. This module

will also describe the code of professional and ethical responsibilities for members of an assessment

review board, conflict of interest, and hearing conduct. Participants also learn techniques that will

enhance ways to work collaboratively with ARB administration and other ARB members.

In this module participants will be introduced to administrative law, the principles of natural justice and

about the duty to act fairly. Participants will learn about jurisdiction and authority, as well as the related

legislation pertaining to assessment review boards. This module also covers how decisions are reviewed.

What is Administrative Law?

Generally speaking, administrative law deals with the organization and powers of the government and the

role of law in controlling the exercise of those powers. Administrative law is created from the legislation

and decisions of the courts.

Role of an Assessment Review Board

Government authorizes a municipality to establish an ARB to carry out certain work and make decisions

on matters related to property assessment.

The Local Assessment Review Board (LARB), Composite Assessment Review Board (CARB), One

Member LARB or CARB, and Municipal Government Board (MGB) are examples of ARB‟s that deal

with and make decisions on assessment matters and matters on a tax notice, other than a property tax

notice.

ARBs:

are creatures of statute

make decisions

work in a legislative framework

balance quantitative efficiency with qualitative justice.

are generally promoted as

- accessible forums where self representation is possible

- not bound by rules of evidence or court rules of procedure

- less concerned with legal forms and technicalities

- more focused on merits

- user friendly, cheaper and faster.

Module 2



Natural Justice and Procedural Fairness

The Rules of Natural Justice

It is the task of an ARB to decide disputes by applying the law at the conclusion of an adversarial dispute

in accordance with the principles and rules applying to the administration of justice and in accordance

with a procedure designed for this purpose. This adversarial principle is enshrined in section 7 of the

Canadian Charter of Rights and Freedoms and also in section 2, as follows:

"no law of Canada shall be construed or applied so as to: (e) deprive a person of the right to a fair

hearing in accordance with the principles of fundamental justice for the determination of his

rights and obligations; . . ."

There are two primary principles of natural justice:

1. Audi alteram partem - a Latin phrase that literally means "It should be heard [audiatur] also the

other party", "hear [audi] the other side too", or "hear the alternative party too". ]Hear the other

side; hear both sides. No man should be condemned unheard. In general terms, this means that no

person should be judged without a fair hearing in which each party is given the opportunity to

respond to the evidence against them.

2. Nemo iudex in causa sua - a Latin phrase that means, literally, "no-one should be a judge in

their own cause." It is a principle of natural justice that no person can judge a case in which they

have an interest. The rule is very strictly applied to any appearance of a possible bias, even if

there is actually none: "Justice must not only be done, but must be seen to be done"

In procedural terms, a decision maker should not only act in good faith and without bias but also should

grant a hearing to any person whose interests will be affected by the exercise of that decision before the

decision is made.

Procedural Fairness

Foremost rules of procedural fairness required by the primary principles of natural justice in the

resolution of complaints are:

1. The respondent must be given full details of the accusations. That is, the factual issues and

allegations to be examined and discussed should be specified in sufficient detail to enable

adequate preparation of a defence and a reasonable opportunity of adequate refutation.

2. Relevant documents used in judgment on a case must be disclosed to both parties.

3. Decisions to admit or exclude evidence should be based on whether it is relevant, reliable and

logically valid, capable of being tested in some form.

4. There should not be undue delay in hearing the matter. (If a complainant/respondent fails to

appear on a number of occasions the case might be determined on the evidence of the party

appearing).

5. Notice of a hearing or conciliation conference should be served on the parties with reasonable

time to enable them to prepare their case. The time and place must be clearly specified.

6. Unless there are exceptional circumstances, do not hear one side in the absence of the other.

7. Give each party the opportunity to state their case adequately.

8. Give each party the opportunity to correct or contradict any statement prejudicial to their case.

9. Witnesses, if any, should be examined or questioned and allowed to be questioned by the other

party. Adequate time should be allowed for this “cross-examination”.

http://laws.justice.gc.ca/en/charter/1.html

http://laws.justice.gc.ca/en/charter/1.html

http://en.wikipedia.org/wiki/Audi_alteram_partem#cite_note-0

http://thelawdictionary.org/side/

Module 2



10. If there are different allegations by different complainants against the same respondent in the

same subject area, it may be a breach of procedural fairness to hear the evidence or allegations

together rather than separately as one may unreasonably influence the other.

It is important to have a complete understanding of the legislation that governs the assessment complaints

process. The legislation and regulations are very specific when it comes to timelines and procedures that

the board must follow. There are however areas where the board has discretion, and where natural justice

and procedural fairness must be considered.

The Requirement of Fairness in the Assessment Complaint Process

From the previous definitions, you can see the most basic concept of administrative law is that the

processes used to reach decisions must be, and be seen to be, fair in order to be valid.

This requirement imposes procedural requirements on ARB members and staff to:

1. give persons affected by a decision the right to be heard

2. not be tainted by bias or the appearance of bias, and

3. have the person(s) who heard the case make the decision.

Whether a procedure will be considered "fair" will depend on all the circumstances of the case.

Circumstances include the legislation, the rules or procedures and the unique situations in the particular

case.

The MGA and MRAC include procedural sections to ensure everyone gets fair process during a

complaint.

The Right to Be Heard

The first concept of fairness, the right to be heard, really means that the parties to a complaint know what

the case to be heard is about, have sufficient time to prepare, and a reasonable time to present their own

case and respond to the case presented by others in the same hearing. It is important to recognize that this

concept applies to both the complainant and the respondent.

In order to ensure fairness in the complaint process, legislated timelines for disclosure of evidence ensure

sufficient time for both parties to be prepared for the hearing. This requirement also prevents either party

from introducing new matters for the complaint or new evidence that places the other at a disadvantage.

A person can “be heard” in a number of ways: face-to-face in person, by telephone, by video conference,

or in writing. There is no requirement for a person to attend a hearing in person. If any person who is

given notice of the hearing does not attend, the ARB must proceed to deal with the complaint if all

persons required to be notified were given notice of the hearing, and no request for a postponement or

adjournment was received by the board or, if a request was received, no postponement or adjournment

was granted.

Fairness also dictates that any party to a complaint has the right to counsel or representation. If a

complainant is to be represented at a hearing by an agent for a fee or potential fee, the assessed person or

taxpayer must sign and provide the ARB with an agent authorization form. If the complainant is being

represented by someone other than an agent for a fee or potential fee, there is no requirement to provide

the agent authorization form.

Module 2



Exercise # 2 – Fairness: Right to Be Heard

Instructions:

i. Work with your table members to answer the questions.

ii. If applicable, use the Municipal Government Act and Matters Relating to Assessment

Complaints Regulation to help you answer the questions.

iii. If applicable, when you provide the answer, also give the Part, Division and section of the

MGA or MRAC that gave you the answer.

iv. Identify a spokesperson for your group to participate in the class debrief.

v. You have 20 minutes.

Representation

A complainant appears at the hearing with someone to represent them at the hearing.

a. Is the complainant entitled to have a representative (a person to speak on their behalf) at the

hearing?

___________________________________________________________________________

___________________________________________________________________________

b. What requirements apply to having a representative at the hearing?

___________________________________________________________________________

___________________________________________________________________________

Legislative reference: _________________________________________________________

c. Would it be reasonable to delay a hearing so a complainant could get a representative?

___________________________________________________________________________

___________________________________________________________________________


Disclosure of Evidence Prior to the Hearing

Before the hearing the complainant requested a copy of the information used by the assessor to

prepare the assessment but the assessor did not provide the information requested.

a. Is the complainant entitled to see the information used by the assessor?

___________________________________________________________________________

___________________________________________________________________________


b. What must the ARB do if the assessor has not provided the information?

___________________________________________________________________________

___________________________________________________________________________


c. What must the ARB do if either party introduces new evidence that has not been disclosed to

the other party at the hearing?

___________________________________________________________________________

___________________________________________________________________________


Module 2



Bias

The second concept of fairness says decision makers need to come to their work with an open mind,

willing to let the evidence and the arguments from the parties present persuade them. They need to be

unbiased.

Bias is lack of neutrality on the part of the decision maker regarding an issue to be decided. In other

words, the decision maker has already made up his or her mind on the case. Naturally, parties want to

know that their presentations and efforts have the possibility of persuading the decision maker and

influencing the outcome of the case.

An ARB should not be judge in its own case. ARB members should not testify as witnesses in the

proceeding over which they preside. Reasonable parties may assume that when assessing credibility, the

member will prefer his or her own testimony over that of other witnesses.

Two Types of Bias

The most obvious type of bias is actual bias, such as a pecuniary interest in the decision or a personal

association with an interested party, but ARB‟s also must avoid any appearance (perception) of bias.

Actual and perceived biases are both unacceptable in ARB members.

o Actual bias means the outcome is already predetermined.

o Perception of bias is the view of one party before a panel that one or more panel members

hold a predetermined result or the high likelihood they hold a predetermined result. The

courts limit this category of bias to a reasonable apprehension of bias, meaning one that is

objectively and independently assessed, not just the fear or view held by the party.

o A party may ask the courts to overturn a decision made by one or more biased panel

members.

What Creates a Perception of Bias?

Courts have identified four common situations in which a decision maker will be perceived to be biased:

i. where the decision maker has a material interest in the outcome of the case (e.g., the member or a

person related to the member may benefit or suffer financially because of the decision – often

called a conflict of interest or pecuniary interest);

ii. association or prior involvement with one of the parties (e.g., the member is related to or closely

involved with one of the parties or witnesses or representatives appearing in the case);

iii. prior participation in the process or a related process (e.g., the member previously represented

one of the parties now appearing before the ARB on the same matter or made the decision at an

earlier step);

iv. attitude or conduct that shows bias or hostility (e.g., a member who makes statements at the

hearing or in public that leave the impression the member has made up his or her mind on the

outcome before having heard all of the parties).

Module 2



Figure 1 - Categories Creating Bias

The Test for Perception of Bias

The courts created a test to evaluate a concern about an appearance of bias. The test is the reasonable

bystander test: Would a reasonable bystander informed of all the circumstances reasonably conclude the

decision maker holds a predisposed result for the case?

Regardless of whether a member is consciously or unconsciously biased, or even unbiased, what matters

is whether a reasonable, informed person looking at all the facts would conclude that the decision maker

could not act impartially. The objector need not show that the apprehended bias actually prejudiced one

of the parties or affected the result. It is sufficient for disqualification if this might occur. Even decision

makers who are confident that they can act impartially, notwithstanding the appearance of bias, must

disqualify themselves from the case.

bias

interest in the outcome -

pecuniary or other

relationship - with parties, counsel or witnesses

institutional - previous role in the same case

attitude, statements or actions toward

the parties, topic, witnesses,

counsel

Module 2



Exceptions to Bias

Some common exceptions around bias include:

o Topic experts who act as panel members. Panel members may be able to draw on their

expertise (without adding new information) to decide the case.

o Members of ARB‟s that deal with complex matters are often drawn from among the

experts in the field who, before their appointment, may have appeared before the ARB on

behalf of a party. The earlier professional association alone may not give rise to a

reasonable apprehension of bias unless the member, before being appointed to the ARB,

had some involvement in the matter now before the ARB.

Unbiased does not mean uninformed. It means only that the decision maker should be open to

persuasion. Members of an ARB may read information about the case before the hearing and may hold

tentative views on the matters at issue. If the decision maker realizes he or she has crossed the line from

informed and tentative views to convinced, then the person must disclose the bias and withdraw from the

case.

Tips around Bias

ARB members should not prejudge a case.

They should not make up their minds so strongly in advance that they cannot be influenced to

decide another way at the hearing. They should not hold predetermined views of the issues on the

matters that would be applied regardless of merits. Evidence of prejudgment is usually found in

statements made by ARB members.

It is unwise for ARB members to express opinions before or during a proceeding.

A statement that the outcome of a proceeding is a foregone conclusion indicates the existence of

impermissible bias.

Improper conduct by ARB members during the hearing may indicate bias.

ARB members should never make flippant remarks or derogatory statements about parties or

anyone else. Use of intemperate language or the display of feelings of antagonism and hostility

toward a party may give rise to a reasonable apprehension of bias against that party. An ARB

member who repeatedly interferes with cross-examination or takes part in the questioning of

witnesses to such an extent as to appear to descend into the arena may be suspected of having bias

for or against a party. A single impropriety may not give rise to a reasonable apprehension of

bias, but a series of incidents might do so.

Bias can arise at any time during the ARB‟s processing of a case (from the time the appeal is filed

until the written decision is sent out).

Many people deal with the case and the parties during this process. Each person dealing with the

case has an obligation to prevent an appearance of bias by the decision makers.

Bias can arise because of the decision maker‟s actions outside the hearing.

Panel members, whether full time or part time, frequently:

o interact in the community

o invite feedback and suggestions

o consult on changes to process

o build rapport and relationships

Module 2



What Happens When Allegations of Bias are Made?

A panel is not to be paralyzed every time someone alleges bias. If the panel decides that a

reasonable apprehension of bias on the part of one of its members exists, that member should be

replaced before the proceeding commences. If a panel member is replaced for bias, then the

hearing must begin again from the start.

Step 1. The panel member, before accepting an appointment to a case panel and continually

during the hearing, needs to determine if he or she has a bias or reasonable apprehension of bias.

The panel member must:

o consider the names of the parties, representative and witnesses for relationships and prior

dealings.

o consider the appeal for any financial interest in the outcome or any previous dealings in

this case.

o consult the legislation, previous cases on bias, the panel chair or legal counsel.

o if an actual bias exists, step back from the case.

o if a potential bias exists, disclose the bias to the panel chair, clerk and if required the

parties. The parties can waive any concern of bias if they are informed.

o decide to either step back from the case or inform the parties and ask for a waiver. If the

parties say no waiver, then step back.

o if no bias exists, accept the appointment.

Step 2. A party who suspects bias on the part of a decision maker must raise the concern with the

ARB in a timely way, usually in the form of a preliminary objection to the hearing. If a party was

aware of bias during the proceeding but failed to object, it may not complain later if the decision

goes against it. An objection must be stated when the bias first comes to the party‟s attention.

Step 3. When an allegation of bias is made, the panel must conduct an inquiry and make a

decision. The member should examine Step 1 first. If Step 1 does not resolve the concern, then

the panel as a group (or a one member panel) needs to hear from all parties about the bias

allegation and then make a decision. The member alleged to have the bias can participate in the

discussions and determination of the result, but cannot give evidence or add any information the

parties do not share. If the panel rules the member is not biased, it may continue with the

proceedings.

An important note: The parties can waive any concern about bias if they are aware of the

information creating the potential bias. Once this waiver has been made, there is no right to

appeal the decision of an ARB on the same ground that was waived. It is important to

include this waiver as a matter discussed at the hearing in the written decision of the board.

Module 2



Exercise # 3 – Bias

Instructions:

i. Work in groups of two to answer the questions.



iii. If applicable, when you provide the answer, also give the Part, Division and section of the

MGA or MRAC that gave you the answer.



Questions:

Bias

1. At the beginning of the hearing, the chair introduces each panel member and asks the parties if they

have any objections to the panel members sitting. The complainant objects to one member of the

panel. In which of these cases would the panel decide to continue with the current panel and why?

a. the member ran for municipal council in the same city as the complainant‟s property, and the

complainant ran against him in the recent election but neither got elected

______________________________________________________________________________

______________________________________________________________________________

b. within the last 6 months the member has lived on the same block as the complainant

______________________________________________________________________________

______________________________________________________________________________

c. the member has recently done consulting work for the Respondent and has not yet been paid

______________________________________________________________________________

______________________________________________________________________________

Legislative reference: ____________________________________________________________

d. the member has made recent public statements in the local paper that there should be a strict

application of the words “fair and equitable” so as to reduce the ARB‟s workload.

______________________________________________________________________________

______________________________________________________________________________

e. the panel of the ARB had decided the identical case in the previous tax year.

______________________________________________________________________________

______________________________________________________________________________

2. Is the following statement biased? “The board‟s role is to protect the rights of taxpayers” Y/N

Why / Why Not____________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Module 2



A Decision from the Person(s) Who Heard the Case

The decision of an ARB can only be considered fair when it is made by the persons who heard the case.

All panel members must agree on the content of the final draft of the decision. Because there may be a

dissenting vote, that vote must be included in the decision.

A decision may be written by someone other than the panel, but must reflect the panels reasons and

rational for the decision. In this case it is important to ensure that the writer does not inject any of their

pre-conceived notions, opinions or knowledge of the case that was not in evidence, into the decision. The

draft of a decision that has been written by someone other than the panel must be approved by all

members of the panel prior to releasing the decision.

Decision makers have to be cautious about relying on:

o preset policy that limits discretion or applies a formula

o advice or feedback from advisors or outsiders

o previous decisions in other cases (only the decision of the courts can be used as

precedence – a decision from another your or another ARB does not set precedence)

o input from persons who did not hear the entire case

o decision drafters or reviewers who impose or substitute (by persuasion) their own

decision.

Best practice tips:

o The decision maker(s) must have heard all the evidence and representations from the parties.

o The decision maker(s) must consider all the relevant evidence and information and cannot

consider any information not disclosed to the parties.

o The decision maker(s) must apply the legislative requirements and tests to the evidence.

o Legal counsel and professional staff can give advice but must leave the actual choices or

decisions or conclusions to the decision maker(s).

o The decision maker(s) must be able to explain the logic for the decision.

o Another person may assist the decision maker to write or edit a decision document, after the

decision maker has made the decision.

Module 2



The Big Picture for Assessment Review Boards

Legislature

Assessed persons

complain about assessment

Municipality or

Municipal Affairs

prepare and issue

assessment notices

Composite

Assessment

Review Board

(CARB)

Each board:

- processes complaints

- holds hearings

- makes decisions on the complaints

- writes decisions

Each board must follow:

- the MGA and applicable regulations

- other applicable laws (constitution & charter)

- natural justice/ fair process

Municipal Government Act (MGA)

Matters Relating to Assessment Complaints Regulations (MRAC)

- establishes ARB‟s

- identifies matters for complaint

- authorizes actions, processes and timelines

- gives powers / authorities / discretion

Local

Assessment

Review Board

(LARB)

Municipal

Government

Board

(MGB)

Module 2



Know Your Legislation

As an ARB member, it is important to know the legislation (the Act) and regulations that provide you

with the authority or jurisdiction to perform your duties. The legislation and regulations you need to be

familiar with are:

Municipal Government Act, Parts 9 through 12

Matters Related to Assessment Complaints Regulation,

Matters Related to Assessment and Taxation Regulation,

Ministers Guidelines,

Interpretation Act

Why are there Acts and Regulations?

Legislation reflects the policy decisions of government as a whole and tends to be broad and more general

in nature. Legislation is difficult to change and requires government scrutiny to ensure that any changes

align with the policies of the government.

Regulations are usually topic specific and detailed in nature. Regulatory changes are much easier to deal

with because they may only apply to the ministry that is responsible for a group or interest that is affected

by the change.

Module 2



Exercise # 4 – Know Your Legislation

The first step is to become familiar with your own legislation and where to find information in that

legislation. The following exercise tests your ability to explore legislation.

Instructions:

i. Work in groups to answer the questions.

ii. If applicable, use the Municipal Government Act and Matters Relating to Assessment Complaints

Regulation to help you answer the questions.

iii. If applicable, when you provide the answer, also give the Part, Division and section of the MGA

or MRAC that gave you the answer.



Questions:

1. A municipal council may pass a bylaw to establish one or more LARBs and CARBs. T/F


_________________________________________________________________________

2. Local assessment review boards include both three-member and one-member panels. T/F


_________________________________________________________________________

3. Every board member must be qualified to participate in a hearing. T/F


_________________________________________________________________________

4. “assessed person” means?


_________________________________________________________________________

5. “Taxpayer” means?


_________________________________________________________________________

6. The date by which a complaint about an assessment notice can be made is?


_________________________________________________________________________

Module 2



The Concept of Jurisdiction

What is Jurisdiction?

Jurisdiction is the right, power, or authority to make legal decisions within the limits of the enabling

legislation.

All acts and decisions of government must be founded on legal authority.

An assessment review board finds its legal authority or jurisdiction within the MGA and MRAC.

The MGA and MRAC provide the legal authority to create an assessment review board and define each

board‟s jurisdiction. A board‟s jurisdiction includes:

who it can make decisions about – an "assessed person" and/or a "taxpayer"

what matters it can decide

what remedies it can provide

what procedures it must follow

what timelines apply

As mentioned earlier, the MGA and MRAC are quite specific on some of these jurisdictional matters, but

also allow discretion to the board to determine other matters.

ARB‟s operate within:

(1) statutory boundaries

(2) natural justice

(3) a standard of correctness and reasonableness for decisions

ARBs that operate outside (1) - (3) are likely making an error in law or jurisdiction.

The Courts may let the ARB decision stand (defer) if:

Enabling statute contains a privative clause (sections of law, typically right in the statutes that

creates an ARB, and that states all, or select decisions of that ARB are final and conclusive

and not subject to judicial review.)

Decision meets the standard of correctness and reasonableness. This will be discussed further

in the Decision Making component of the course.

Module 2



When a complaint is filed, it is generally the ARB clerk that determines which board has jurisdiction to

hear the complaint. It is important that the clerk has an understanding of the various property types and

which board has jurisdiction to hear them. If the clerk is unable to decide which board will hear a matter,

the issue should be brought forward to a panel member to review and decide which board has jurisdiction

to hear the case.

A chart for dealing with ARB Complaints by Notice Type is included in the Appendix of this manual.

Important note: Generally the ARB has jurisdiction to hear the case unless someone brings something

to the panel‟s attention or the panel notices something to question its jurisdiction. Most often this means:

a party raises an objection, or

the clerk or the panel notices the file contains some information that raises a concern about

jurisdiction, or

someone presents evidence in the hearing which raises a concern about jurisdiction.

Figure 2 Jurisdiction of ARB’s

Linear property and

equalized

assessment

s. 488(1) (a) & (b)

4 or more dwelling

units, non-res

(commercial and

industrial), and

machinery and

equipment

s. 460.1(2)

3 or fewer dwelling

units, farmland, and

a tax notice other

than a property tax

notice

s. 460.1(1)

CARB

LARB

CQB

MGB

Module 2



Exercise # 5 – Jurisdiction

The next step is to become familiar with the jurisdiction of your assessment review board.

Instructions:

i. Work as a group to answer the questions.



iii. If applicable, when you provide the answer, also give the section of the MGA or MRAC that

gave you the answer.



Questions:

1. A complaint is invalid if it does not contain certain information set out in the MGA and MRAC. T/F


2. A complaint must be filed within a set time limit or the panel must dismiss it. T/F


3. The complainant filed their residential complaint using a 15 page letter, with a large envelope of

documents and pictures to go with the letter. The complaint contains all the information required

on the complaint form but is not on the form.

a. Does the panel have jurisdiction to hear the case? Y/N

Legislative reference: ______________________________________________________

b. Is the complaint valid? Y/N


Why or why not? _________________________________________________________

________________________________________________________________________

________________________________________________________________________

4. A complaint about a business tax notice is received by the clerk of the assessment review board.

a. Which board would have jurisdiction to hear the complaint?


5. A complaint is filed by a farmer who operates a small greenhouse and cannery on his property.

a. Which board would have jurisdiction to hear the complaint?


Module 2



6. Before the LARB hearing begins, you are reading the disclosure filed by both parties and see that

the complainant intends to bring six witnesses. Three witnesses are other home owners who will

testify about their own property assessments. The fourth witness is the president of the “Citizens

Against Taxing Seniors” (CATS) who will testify that seniors are overtaxed. The fifth witness is

an expert property appraiser who has prepared a written report on the market value of the

complainants property. The sixth witness is a property manager who will testify about the income

from, and costs of maintaining his four-plex property.

a. Does the information about complainant‟s witnesses raise any jurisdictional concerns for

you? Y/N

If so, what is the concern? __________________________________________________

b. What should you do? ______________________________________________________

________________________________________________________________________

________________________________________________________________________

Module 2



The Concept of Hearing Style

Earlier in the “Rules of Natural Justice” section, the term “adversarial dispute” was used. Hearing style

refers to how the ARB characterizes the type of process the ARB uses to deal with cases. .

The ARB‟s hearing style is important because it helps the panel members know how to act. How to act

includes when and what type of questions the panel members can ask and includes whether the panel

can ask for evidence or go and get evidence that fills in gaps or makes it easier or more comfortable for

the panel to decide the case. Understanding the hearing style of the ARB helps the parties know how to

present their cases. There are three main types of hearing styles: Prosecutorial, Adversarial and

Inquisitorial.

Prosecutorial Style

Like a criminal trial. Involves an allegation that someone has broken the law or committed an act

contrary to the law or a code of conduct.

Characterized by two or more parties - each representing an opposing view of the case, interacting with

the panel. One party acts as the investigating officer/prosecutor for the organization. The prosecutor

normally goes first to prove an alleged breach of conduct or standards and the applicable penalty. If the

prosecutor does not bring the required information or sufficient information in a case, that prosecutor

risks the panel not upholding the breach.

The panel will act like a judge in a trial and let the parties make their own cases as they see fit; the panel

will not act as an advocate for any party. A panel member will ask clarification questions, but will not

ask questions or seek information that will fill in gaps in the case or provide a fuller story than the parties

want to present. The panel makes its decision using only the information presented by the parties.

Inquisitorial Style

Like a public inquiry. Characterized by a single party or sometimes two parties interacting with the

panel.

The panel has the obligation to satisfy itself of all statutory requirements and will therefore take on the

role of questioning the party/parties as much as necessary to obtain information. The panel has the power

to obtain additional information not produced in the hearing. The panel will satisfy itself of the statutory

requirements by gathering as much information as it needs and will also apply the principles of fair

process.

Adversarial Style

Like a civil trial. Characterized by two or more parties - each representing an opposing view of the case,

interacting with the panel. If the party does not bring the required information or sufficient information in

a case, that party risks the panel ruling against the party.

The panel will act like a judge in a trial and let the parties make their own cases as they see fit; the panel

will not act as an advocate for any party. A panel member will ask clarification questions, but will not

ask questions or seek information that will fill in gaps in the case or provide a fuller story than the parties

want to present. Such inquisitorial questions can lead to the introduction of new evidence, which may put

either party at a disadvantage, goes against the right to know the case to be met prior to the hearing and

lastly, the board must not hear any evidence that was not disclosed prior to the hearing. The panel makes

its decision using only the information presented by the parties.

Assessment review boards use the adversarial hearing style. Their decisions are based solely on the

evidence presented by the parties to the complaint.

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The Concept of Decisions

The parties come to a tribunal to get a decision. The decision usually refers to the final decision on the

merits of the complaint, application or appeal. Tribunals make decisions about individual rights, benefits,

entitlements, disputes between parties and many other matters. Examples of decisions that a government,

or its tribunals, may take include decisions about assessment and taxation, the implementation or

cancellation of programs, determination of entitlement to benefits, authorizations for indemnification or

payment of compensation, the issuance or revocation of licenses or permits, etc. For assessment and

some tax related matters, the outcome of the local assessment review board, composite assessment review

board and Municipal Government Board processes are decisions.

Tribunal decisions are usually categorized as policy, legislative, administrative or quasi-judicial. Quasi-

judicial decisions are those decisions made in a court-like manner and usually concern the rights of an

individual. Generally, the courts impose a higher procedural requirement on the making of administrative

and quasi-judicial decisions than they do on policy and legislative decisions.

Within the process for handling the case, the tribunal, or persons legitimately acting on its behalf, will

make many other determinations that are often also called decisions. These determinations affect the

process, when parties can or must take steps, who must take action, who can appear at a hearing,

jurisdiction, procedural objections or applications, and evidentiary or procedural questions during the

hearing. Determinations like these also affect the legitimacy and validity of the final decision on the

merits.

Challenges to Decisions

The acts or decisions of government officials may be challenged by means of an application to the court

to overturn or quash a decision (called judicial review or an appeal).

Legislation (here, the Municipal Government Act) and previous court decisions establish the criteria

which the courts will use when they review the exercise of government decision-making authority.

People challenge tribunal decisions for a variety of reasons including:

o not agreeing with the result or the reasons

o feeling they did not get a fair hearing

o feeling the panel was biased

o believing the panel did not consider all the relevant evidence or relied on irrelevant

evidence

o believing the panel did not correctly apply or interpret the legislation.

Court Review of Decisions

In 2008 the Supreme Court of Canada altered the historical tests for reviewing the decisions of

administrative tribunals. In a case called Dunsmuir v. New Brunswick, 2008 SCC 9, the Court eliminated

the historical three tests of review and confirmed two tests going forward – correctness and

reasonableness.

With this decision and several decisions which follow, the courts began to give some valuable insights

into what the courts require and expect from tribunal decisions to make the task of reviewing the decision

more manageable. The court in Dunsmuir focussed on the reasons for decision as one of the single most

important aspect of the decision, after the outcome. Reasons provide the transparent, intelligent and

logical justification for the findings, conclusions and outcomes reached by the panel; reasons help the

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court understand and observe the decision making process used by the panel. Reasons must be able to

withstand some scrutiny by the court.

Under the Municipal Government Act, all appeals from assessment review board decisions go to the Court

of Queen‟s Bench. Section 470(1) of the MGA outlines:

o who can appeal

o time lines for appeal

o grounds for appeal

o how to get information on the appeal

o the requirement of the tribunal to keep an official record.

o what the court will consider when dealing with an appeal

o what the court can order in an appeal.

Section 470.1 of the MGA, clarifies the court‟s role on assessment decisions. The court will review the

ARB decision on the face of the record, meaning using the written documents from the ARB hearing

only. The parties will not receive a new hearing where they can call new evidence.

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Module 3 – Assessment Review Board Hearings

In this module we will take a look at how administrative law comes together with the legislation that

guides an ARB. This module provides an overview of ARB procedures, including the order of

proceedings and questions, rules of evidence, the role of witnesses, and case arguments. Participants

learn about presiding skills, fact finding, legal counsel, note taking, and confidential information.

Every ARB has its own unique hearing procedures. However, parties (agent‟s or legal counsel) who

appear before multiple boards prefer to see consistency and predictability in these proceedings. Hearings

need to be understandable, objective and procedurally fair to the party‟s. The assessment complaints

process, if followed, provides a fair ARB members must demonstrate that they are impartial, competent

and qualified to hear the matters before them.

In Module 1 you learned about conduct, collaboration and how establishing a code of conduct and

mission statement could provide a solid foundation for your board to guide itself. Likewise, established

procedures that complement your code of conduct, will help ensure an orderly and smooth running ARB.

To help, a basic checklist for the board to follow is recommended.

Overview - A Typical Hearing Process

1. Call to order and welcome by the Chair

2. Introductions of the panel, parties and other persons in the room

i. name, organization and role in the hearing (agent, representative, witness, observer etc)

3. Opening comments by the Chair

i. role and composition of the panel

ii. role of the parties

iii. purpose of this hearing

iv. issues surrounding the matters in the hearing

v. legislative section(s) that applies

vi. how the hearing will proceed – what happens when, who goes in what order, time,

breaks, hearing being recorded or not, whether the panel will interact with the parties in

breaks, whether the panel will ask questions, how the parties can get process assistance

during the hearing, whether the panel will give a decision today

vii. formality in the hearing – rules of evidence do not apply, witnesses may be sworn or

affirmed, how to address the panel and members, courtesy and respect in the hearing

viii. any challenges on bias?

ix. any objections to the panel‟s authority – time, process, subject matter?

x. ready to proceed?

4. Evidence from the parties and experts

i. start with documents filed / disclosed before the hearing (the evidence)

ii. review each document and give it a number or identify it for the record.

iii. explain the MGA and MRAC sections dealing with new evidence. (evidence not

disclosed prior to the hearing must not be heard by the board)

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iv. restate the matters to be decided, from the complaint, which creates the relevant base for

the evidence and enables the panel to more easily deal with applications or objections

during the hearing about new documents or documents not provided when requested or

within time

v. explain one witness will testify at a time and how each witness is participating in the

hearing

vi. explain if witnesses will be sworn or affirmed to tell the truth by the chair or clerk (the

witness has the choice of being sworn or affirmed)

vii. explain which party calls witnesses first

viii. explain what happens for each witness – direct examination, cross examination, redirect

examination, clarification questions from the panel

ix. tell the parties if questions to the witness are asked directly to the witness or through the

chair

x. confirm with the parties if witnesses will be located outside the hearing room until they

testify (excluded until they testify)

xi. witnesses to be given copies of all the marked documents (exhibits) – by staff – so they

can refer to a document if asked questions about it

xii. witnesses need to speak clearly and slow enough for the panel to take notes and to help

the recording if required

xiii. expert witnesses to be questioned first on their qualifications and a decision made by the

panel if the witness is an expert and in what field or topic; experts then questioned on the

content of their evidence

xiv. deal with each witness and then thank them for attending

5. Arguments / Submissions by the parties

i. Chair explains what the process involves – who goes first, second etc; if the panel will

ask questions; if the parties can debate between them; any time limits on the presentation;

whether parties should read from their briefs or cases

ii. each party presents their argument

iii. panel asks questions to the parties

6. Closing Comments by the Chair

i. thank everyone for participating

ii. confirm the issues surrounding the matters the panel will be deciding using the evidence

and arguments presented

iii. when and how the decision will be sent

iv. who to contact after the hearing – staff, not panel

v. firmly close the hearing.

7. Adjournment

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Tips on hearings

Scripts can greatly assist the panel chair to handle opening and closing comments.

Cards can provide ready access to a typical oath or affirmation.

Checklists can help the chair and staff deal with objections, concerns or applications that occur

during the hearing.

Note: Be sure that scripts, cards or checklists do not restrict your good judgment!

The ARB Hearing

This section has been prepared for informational and educational purposes. It is not a substitute for any

professional or legal advice. Before acting on this information, readers should consult their own statutes

and policies, or seek out the relevant professional assistance.

1. Panel Member Preparation

The panel will receive information from the clerk that was submitted by the complainant and the

respondent in their disclosure. This will include documents, appraisals, comparables and argument. Often,

only some of this information will be important for your decision. You will need to organize this

information into a logical framework and filter out the useful from the irrelevant.

It is helpful, before the hearing, to do some brief preparation. You must guard against pre-judgment! Do

not try to form your own view of what the arguments should be.

Review the available documents to get oriented with the matters and issues that are likely to be raised. It

is important to understand the difference between the “matters” for the complaint as specified in section

460(5) of the MGA and identified on the complaint form, and the “issues” that arise from those matters

that are presented as evidence. An issue is a point in question that is in dispute with respect to or relative

to the identified matter. A board cannot hear any evidence with respect to a matter that has not been

identified in Section 4 of the complaint form. See; section 2(1)(a) of MRAC and section 460(7) of the

MGA.

This is an opportunity to review the statutory legislation involved and any important policies related to

the case. You can begin to construct a mental outline of the matter(s) under complaint and the issues with

respect to those matter(s). This will help you listen effectively and appreciate the significance of what is

being said during the hearing.

2. Objections to Jurisdiction or Procedure

Objections or challenges to an ARB‟s jurisdiction or procedures usually occur before a hearing starts but

a motion challenging the jurisdiction of the ARB or objecting to a procedure may be brought at any time.

If a challenge to jurisdiction or procedure is raised by either party prior to the merit hearing, proper notice

must be given to the other parties, and a preliminary hearing may be required to deal with the matter. The

challenge should carefully set out the grounds on which the moving party intends to rely.

Examples of challenges to jurisdiction or procedure might include:

insufficient or inadequate notice of the hearing;

failure to comply with any applicable legislation;

failure to comply with procedural order;

alleged bias;

the matter before the ARB is beyond the powers provided in its enabling act;

a party has applied to a court to have the proceedings stopped;

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someone did not do what they were to do or within the timelines specified;

parties did not get the information required to prepare; or

someone needs an adjournment.

Tips for Dealing with Objections

Try to have any procedural or jurisdictional objections dealt with before the hearing so the merits

of the hearing proceed more smoothly. Some administrative matters may need to be dealt with

prior to a merit hearing date being set. This is known as a preliminary hearing.

All parties need to be able to provide their comments on the question. Sometimes a party will

need extra time to prepare its response. This might require a postponement of the hearing.

The panel will need to decide if it has jurisdiction before it can continue to decide the matters.

Sometimes the panel can decide immediately and other times it may need to postpone or adjourn

the hearing until the panel can get legal advice on the matter. This is particularly so when the

motion involves complex questions of law.

Staff can assist by attempting to reveal any jurisdictional or procedural questions well before the

hearing and assisting the parties to exchange all the information about the questions.

3. Adjournments and Postponements

Realistically, hearings cannot always be expected to proceed and be completed at the first sitting. From

time to time hearings must be postponed or adjourned.

The term postponement refers to rescheduling a hearing which has not yet started, but for which a date

for commencement has been set. The term adjournment refers to stopping a hearing that is in progress

and rescheduling a future date for the continuation of the hearing.

Only in exceptional circumstances as determined by an assessment review board may an adjournment or

postponement be granted. Parties must request an adjournment or postponement in writing and, whenever

possible, the request should be made in advance. The board should canvass the views of the other

participants before making a decision with respect to granting a postponement or adjournment. If an ARB

grants an adjournment or postponement, they are still subject to the timelines specified in section 468 of

the MGA to complete the hearing and render their decision.

The CARB and the MGB have the statutory authority under section 52 of MRAC to award costs against

a participant when they request an adjournment or postponement that could reasonably have been

anticipated, if it results in inconvenience or increased expense to any other participant.

When considering whether or not to grant a postponement or adjournment, an ARB must consider its

legislative authority, the complexity of the matter at hand, the amount of time already afforded the parties

for the preparation of the case, the efforts of the parties to be present at the hearing, whether or not there

have been any previous postponements or adjournments, and any other relevant factors. See: section 15

MRAC.

Question’s for Discussion:

1. Would the board postpone a hearing if one of the parties failed to show up?

a. Why / Why not?

b. Is there legislation to deal with this?

2. What would be considered an exceptional circumstance?

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4. Fairness or Efficiency

All matters concerning processing, scheduling, and hearing a case involve a balancing of the demands of

fairness and efficiency. Hard and fast guidelines are not possible, as each case and each request must be

looked at on its own merits. It is important, however, to bear in mind that common sense lies at the root

of any decision in these matters.

Ensuring that the parties are provided with a fair hearing in accordance with the principles of natural

justice is, of course, the paramount concern of any ARB, but efficiency is also essential to the proper

conduct of the ARB‟s affairs. If cases are allowed to drag on without proper reason, the overall quality of

the ARB‟s work is diminished.

5. Access to Information and Disclosure

Parties need access to information before the hearing so they can come prepared to make their

presentations at the hearing. Proper prehearing disclosure makes the hearing more focused, makes the

hearing shorter and helps to prevent or avoid or lessen objections and applications about process,

jurisdiction and evidence.

The MGA and MRAC dictate disclosure obligations and time limits. Panels may have to decide

preliminary matters about disclosure and give directions. In some cases, panels may awards costs for a

party‟s failure to comply or for a party‟s actions that contribute to an extended hearing or unnecessary

hearing. See section 52 of MRAC.

Pre-Hearing Filing or Disclosure of Potential Evidence

Once a complaint has been filed, a formal process exists for the exchange of information between the

complainant and the respondent before the hearing. This exchange of information, otherwise known as

disclosure, includes the following:

all relevant facts supporting the matters for the complaint,

all documentary evidence to be presented at the hearing,

a list of witnesses who will give evidence at the hearing,

a summary of testimonial evidence,

the legislative grounds and reason for the complaint, and

relevant case law and any other information the complainant considers relevant.

All parties have an obligation and are accountable for providing complete disclosure within the

timeframes set out in MRAC. The parties to a hearing must not be ambushed by the introduction of

evidence of which they were not aware. An assessment review board must not hear any evidence that has

not been provided to the other party in accordance with the legislation, or that has not been disclosed

within the timelines. See section’s 5, 9, 22, 34, 40 and 46 of MRAC.

Access to Information – MGA sections 294, 295, 299 and 300

Sections 294 and 295 of the MGA refer to an assessor‟s right to enter on and inspect property, and request

information from the property owner in order to prepare the assessment on that property. Sections 299

and 300 of the MGA refers to the assessed persons right to see sufficient information from the assessor to

demonstrate how the assessment was prepared, or obtain summary information about other similar

properties (used for comparison). Improved access to information and complete data for all parties

promotes openness and transparency, leads to greater confidence in assessment quality and will reduce

the number of assessment complaints filed.

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It is important to understand that access to information requests are available to either party at any time of

the year and are not part of the formal complaint process. There are legislated obligations for a

municipality to provide information to assessed persons within specific timelines. If information

requested under section 299 and/or 300 was not provided by the municipality, a request to the Minister for

a compliance review under section 27.6 of MRAT is required to deal with this matter.

Although these information requests fall outside the complaint process, they may have an impact on the

jurisdiction of an ARB. The Assessment Review Board Complaint form, section 4, contains a statement

where the complainant can indicate if they have requested information under section 299 or 300, and

whether it was provided to them.

If an assessed person has requested information under section 299 or 300 and it was not

provided, it cannot be used as evidence by the assessor in a hearing and must not be heard by

the board. This is considered a failure to disclose and is covered in MRAC under sections 5

and 9, 22, 34, 40 and 46.

If an assessor has requested information under section 295, and that information was not

provided within the specified timeline, the assessed person cannot file a complaint against

that assessment. See section 295(4) of the MGA.

Prior to the hearing, a party may make a request to the board for a postponement until information can be

received or provided depending on the complexity of the information. This is an administrative matter

that the board must decide on, keeping in mind the legislated requirements and natural justice. If the issue

of failure to disclose arises at the hearing, the board may, after hearing arguments, determine that:

the production of a document or witness is required make a correct decision. See section

465(1) of the MGA

a postponement or adjournment is required to provide time for the production of documents

(section 15(1) of MRAC), and fair disclosure timelines for all parties (section 6, 10, 23,

3541, 47of MRAC).

they will proceed with the hearing based only on the evidence that has been disclosed

(sections 5 and 9, 22, 34, 40 and 46 of MRAC).

Tips for panel members when dealing with access to information requests and disclosure obligations

o determine all legislative requirements and timelines

o deal with all requests or applications in a timely way – who can make the decisions (one

member or three member panel)

o obtain sufficient information to make procedural decisions as required; ensure fair

process to all parties when dealing with requests or objections

o before the hearing, review all actions and times required and the actions taken to see what

is outstanding – this may prompt a postponement or adjournment of the hearing

o consider the relevance of the information that is missing

o consider and use, as appropriate, the power to award costs

Question’s for Discussion:

1. Under what circumstances would a board postpone a hearing?

2. Under what circumstances would a board proceed with the hearing?

3. Under what circumstances could award costs?

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6. Evidence

Evidence is a complex subject and this section gives only an introduction to the concepts of disclosure,

admissibility, relevance, hearsay, and weight of evidence.

Evidence Is

Evidence includes all the means of proving or disproving any matter, for example, oral testimony of

witnesses and experts, written records, demonstrations, pictures, objects, reports, maps, videos,

audiotapes, letters, notes, diaries, computer or data records, etc. The term “evidence” does not include

arguments on behalf of the parties (sometimes called submissions or representations) which are made to

persuade the decision maker to take a certain view of the evidence.

The parties bring the evidence to support their cases and to demonstrate to the panel that they meet the

legislative requirements for a decision in their favour.

The panel uses the evidence to determine whether the party has met the obligation to prove its case. Has

the party proven what it must prove to win the case or obtain the result it seeks? The panel uses only

relevant evidence and in decision making, weighs that evidence by determining the value of the evidence

in the decision making task.

The documents, witness names, witness statements and other items disclosed by a party before the

hearing are proposed evidence only. At the hearing the panel may refuse to accept or admit some of the

proposed evidence and then it will not be used to make the decision. This concept reinforces the notion

that a panel can read information before a hearing, but must keep on open mind because the information

may not be used after the hearing.

Not Bound by Strict Rules of Evidence

ARB‟s are not bound by all the legal and technical rules of evidence that would apply in a court of law.

Some statutes expressly provide that the ARB has the discretion to accept any evidence and information

that it sees fit, whether or not the evidence is admissible in a court of law.

The important factor is for the ARB to follow the legislative requirements and if possible, to obtain all of

the information it needs to make a reasoned, rational decision.

However, it is helpful to have some understanding of the standards that courts apply when considering

evidence, as they can serve as a useful guide in determining the weight or importance an ARB should

give to a particular piece of evidence.

Two key concepts that universally apply to evidence in ARB hearings are:

1. relevance, and

2. reliability.

Relevance refers to whether the evidence, assuming it is true, can assist the panel in answering the matters

before it as listed on the complaint. This is the common test for admitting or allowing evidence into the

hearing process.

After the hearing, the panel decides the reliability of the evidence and gives it weight or priority among

the evidence when making a decision. The weight of the evidence refers to how much reliance the panel

should place on the evidence in coming to a conclusion in the case.

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A panel often finds it difficult to gauge the relevance and reliability of a particular piece of evidence until

all the evidence has been heard. Whenever the panel makes decisions about admissibility of evidence or

weight of evidence, it must be prepared to provide the reasons for its determination.

Admitting Evidence

Evidence is admitted during the hearing. An ARB may accept all kinds of evidence during the hearing.

Often it is easier and faster in the hearing to accept the evidence and then determine its relevancy and

weight after the hearing.

Generally, all evidence offered to a panel by the parties may be admitted, that is, accepted for

consideration. Evidence is admissible if it is relevant to the matters in the case and there is no law or

custom preventing it from being received.

When the panel admits evidence, it or the staff should mark the evidence as part of the official record.

Generally ARB‟s “mark” witnesses by recording their names and administering the oath/affirmation

before hearing the witness‟ testimony. Other evidence (whatever it is) can be “marked” by giving it the

next sequential number in the hearing (exhibit 1, 2, 3 etc). The clerk keeps the official list of

exhibits/evidence and the names of all witnesses.

How to Mark an Exhibit:

Relevance of Evidence

Generally we understand that evidence is relevant if it can assist the panel in some way to answer the

matters or issues before it. Evidence assists the panel to reach logical conclusions on the issues.

Relevance cannot be assessed in isolation. It is always necessary to consider the purpose for which the

evidence is to be introduced. If a party cannot provide a good explanation as to why the panel should

accept a piece of evidence that on its face seems unconnected with the matters to be resolved, the

evidence should not be accepted. However, a piece of evidence may, at first, appear to be irrelevant. In

the context of the entire hearing, it may turn out to be relevant, although of low probative value. Care

should therefore be taken before rejecting any evidence.

A party might be allowed to submit certain evidence at a hearing, but this does not mean that the panel

has conclusively decided that the evidence is relevant. If, after hearing all the evidence, the panel decides

that the evidence in question is not relevant, the reason should be stated and the evidence ignored in

decision making. The tendency generally is to admit evidence and to decide later what weight, if any,

should be assigned to the evidence.

Weight of Evidence

Weight of the evidence refers to how strong the inferences or conclusions are that can be drawn from the

evidence. The stronger the inferences, the higher the weight or value in decision making. In other words,

how valuable is one piece of evidence to prove the facts compared to another piece of evidence.

File #: _____________________

Exhibit No. ____________

Date: ___________________

Entered by: ____________________________

(name of party or by agreement)

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Weight must be viewed in the context of the whole case. Decisions regarding weight can usually only be

made in decision making, once all the evidence has been heard. More of this is presented in decision

making where the panel makes findings of fact.

One Common Exception in ARB Hearings - Hearsay Evidence

Hearsay evidence consists of written or oral statements made by persons who are not testifying at the

hearing, which are presented as proof of the truth of those statements, i.e., hearsay is a second-hand

account of events.

For example, suppose that Mr. X is testifying about a motor vehicle accident and states that he did not see

the accident, but he heard Ms. Y say that the traffic light was red at the time of the accident. The purpose

for which this evidence is offered is vital to its classification as hearsay or non-hearsay. Mr. X would be

giving direct evidence (non-hearsay) of the fact that Ms. Y made such a statement. He would be giving

only second-hand (hearsay) evidence as to the truth of whether the light was in fact red.

One problem with allowing the testimony of Mr. X to be admitted at a hearing is that Ms. Y was not

under oath when she made the statement, and testimony under oath, one of the cornerstones of our

judicial system, is usually considered necessary in order to ensure that statements are made honestly. A

greater problem with Mr. X‟s testimony is that Ms. Y is not available to be cross-examined on her

statement. Under cross-examination, Ms. Y could be questioned on whether she was in a good physical

location for viewing the scene of the accident, whether she had good eyesight, whether she was sober at

the time, whether she had any particular self-interest in making the statement, or whether she might

otherwise be biased in her view of events. A thorough cross-examination would help in determining the

probative value of the testimony.

Additional reasons for scepticism or reluctance in accepting hearsay evidence are that:

the farther removed a statement is from its source, the less reliable it becomes;

fraud may be more easily perpetrated;

decisions based on second-hand evidence may not be as good as decisions based only on the

best evidence; and

hearings may be unduly lengthened if every possible piece of evidence is introduced.

ARB‟s generally refuse to accept hearsay evidence, although they make exceptions. An ARB may accept

hearsay evidence, but in so doing it should remain aware of the limitations of such evidence.

Despite the problems with hearsay evidence, the courts have not absolutely excluded hearsay evidence at

trial and have developed many exceptions to the general rule against accepting hearsay evidence. The

exceptions have developed in a haphazard way as needed to solve particular problems and have usually

arisen when the person making the statement is not available to testify and the statement is the only

cogent evidence available. Affidavits are hearsay evidence.

Some of the exceptions recognized by courts to the rule against admitting hearsay evidence include:

declarations against a person‟s own interest (on the basis that people are not likely to make

untrue statements that harm themselves);

declarations made in the course of a business duty (where the records were made at the time

and there was no motive for fabrications); and

statements made in public documents (because ordinarily public officials will be honest and

careful in preparing documents intended to be retained and kept as a public record, available

at all times for inspection).

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These are only a few examples of a very detailed and complex area of the law. In accepting hearsay

evidence, courts recognize that second-hand evidence can at times have sufficient inherent

trustworthiness to be of value. This is especially true in circumstances where it would not ordinarily be in

the speaker or writer‟s interest to make a false statement.

The point here is that hearsay evidence may be very reliable or very unreliable depending on the

circumstances of a particular case. Therefore, evidence should not automatically be rejected as having no

value simply because it is hearsay in nature.

Affidavits

An affidavit is a sworn written statement by a person that can provide information:

Based on personal knowledge and observation

Based on belief that information provided to the person by another is true

Contained in documents which are attached to the affidavit.

Essentially, an affidavit is the “direct examination” portion of a witness‟ testimony, put on paper. It is the

information which the witness chooses, in his or her own words, to tell. It does not necessarily contain all

the information that the witness knows.

The courts are generally reluctant to admit affidavit evidence to prove facts other than formal or non-

contentious points. However, it may be allowed if there are sufficient reasons.

6. The Role of Witnesses

Witnesses participate in hearings to provide information to the panel that can assist the panel in its

decision making. Parties determine which witnesses to call in support of their cases and determine the

order the witnesses appear. Generally a party calls the witnesses in a way that makes most sense to how

they present their case. This order may or may not make sense to the panel at the outset.

Types of Witnesses

A factual witness, which is most of the witnesses in most hearings, can tell the panel about what the

witness knows or has seen or heard or of actions or events in the witness has participated. This witness

should not give opinions and cannot speak about things beyond the witness‟s personal knowledge or

involvement.

An expert witness may give evidence from personal knowledge or involvement, but frequently provides

the panel with an additional level of expertise on a subject matter in the hearing. This witness can also

give a professional opinion, which the panel can assess and adopt as its own.

Witnesses can expect questions about:

their name, role, organization

general background – may include education, experience, length of service

general questions leading to the context of the specific information the witness has

details of the specific information held by the witness

contrasting versions of events from other witnesses

clarification of information given by them

authoring or receiving documents.

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Expert Witnesses

Opinions from experts are more reliable than other opinions, and courts will allow experts to give

opinions on technical matters that involve the area of their special expertise.

ARB‟s may consider experts‟ credentials, education, and experience in weighing the expert‟s opinions or

in deciding whether to listen to the evidence at all.

Process for Qualifying an Expert

The following is a frequently-used method for qualifying an expert witness:

Expert is sworn / affirmed

Party calling the expert normally files the expert‟s curriculum vitae (C.V.) or resume in advance,

enters it as an exhibit, and supplements the C.V. with a few questions at the outset of

examination. The purpose is to establish the person‟s expertise using their education and/or

experience in a particular area.

Other parties are given on opportunity to cross examine the expert on his or her qualifications to

establish “expertness” and to lessen the impact of later testimony.

Other parties may ask the ARB to refuse to hear opinion evidence from the expert if the

qualifications are not proven.

Panel hears any arguments from the parties about whether to recognize the witness as an expert.

Panel makes a ruling on whether to accept the witness as an expert and in what area.

If the panel accepts the witness as an expert, the chair says “we recognize ________ as an expert

in (area of expertise).

If qualified as an expert, the party calling the expert witness continues with the rest of the

questions in direct examination.

The ARB may decide to waive the formality of qualifying a witness under the following

circumstances:

- if the ARB already knows the witness to be an expert in the area in which she or he proposes

to testify, or

- if the evidence will be limited to an area where the ARB has reason to be confident of its own

expertise.

Tips for panel members around witnesses:

o deal with the witness only in the hearing

o obtain proper spelling of names for the decision document

o in the hearing be prepared to provide information to witnesses about the hearing process

o swear or affirm witnesses if required

o ensure a separate chair and table for the witness at the hearing – in clear view and hearing

of the panel and all parties

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o determine and understand the authority of the ARB to order witnesses to appear or

produce documents – who can exercise the authority, when, in what form

o parties are responsible to identify their witnesses, determine the order to call the

witnesses at the hearing, inform their witnesses when to attend the hearing and where,

pay their witnesses fees or expenses as arranged between them.

Compelling Attendance of Witnesses or the Production of Documents

An ARB has the legislative authority to order witnesses to attend the hearing and/or require the

production of documents. Section 465 (ARB) and 497 (MGB) of the MGA gives this authority. The

exercise of this power is rare and caution must be used when considering its use.

There are times however, when the board may require the production of documents in order make the

correct decision in a case.

A one member panel may be able to deal with this type of application if it is a pre-hearing administrative

matter; however, once the hearing has commenced a three member panel will deal with the matter.

Compelling Attendance of Witnesses

Some general considerations of a panel when dealing with requests to compel attendance of witnesses

include:

the statute may enable the parties to call any witnesses they deem fit (ARB‟s cannot hear any

evidence that was not contained in the prehearing disclosure.)

the ARB may have a practice of compelling the attendance of any witness requested by a

party and dealing with any objections related to that witness at the hearing

some ARB‟s will deal with requests to compel attendance of witnesses as pre-hearing

procedural matters which may give rise to additional questions about sufficiency of time for

the hearing, relevance of evidence, or other procedural matters

some ARB‟s will deal with requests to compel attendance as “ex-parte” applications that are

not discussed with the other parties before the hearing in order to protect the witness from

“pressure” by the other parties.

If the ARB issues a “Notice to Attend” or “Subpoena” to a Witness and the witness does not attend

the hearing as required, the party seeking the witness must decide how to proceed. Generally, the

party seeking the witness‟ evidence would, if the matter is serious enough, ask the ARB to file the

decision to compel attendance in the courts (subject to statutory limitations) and then the party would

enforce that order as an order of the court.

Requiring Production of Documents

Some considerations to keep in mind when dealing with requests to compel production of documents

include:

statutory powers of the ARB around what can be compelled and when

documents should be relevant to the matters before the ARB and the onus rests with the party

seeking the documents to convince the panel that the documents are relevant.

production of documents can put a party to extensive costs in time and resources to search out

and produce documents. A balancing of interests may be necessary.

persons or organizations who are not parties to the hearing should be given an opportunity to

speak to the request for production of documents before the panel makes its decision

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generally, the party being asked to produce the documents should be given the opportunity to

make comments to the panel before the panel makes its decision. A party may voluntarily

agree to produce all or some of the documents.

the panel may have to give directions to protect documents or preserve confidentiality or to

set time lines for production and copies.

The board must be cautious that when compelling the attendance of a witness or the production of

documents. An ARB must not compel evidence that is not relevant to the matters identified that are under

complaint.

7. Working with Translators

Translators assist witnesses who testify in a language not understood by the panel. The ARB wants to

ensure the translator will accurately translate what is said in either language.

Interpreters or translators assist the ARB by translating the questions to a witness and translating the

witness‟ answer to the panel and counsel. Translators must be sworn or affirmed before the witness is

sworn or affirmed. The purpose of the translator oath or affirmation is to ensure he or she is fairly and

honestly translating what is transpiring.

Sample Subpoena /Notice to Attend / Production of Documents

(Letterhead and Logo of the Tribunal)

TO: (name and address of person being sent the notice)

You are required to attend before the ____________________________ on:

Date, time and place

and at such times and places as the hearing may continue until concluded,

to give evidence in a hearing between _________names of parties ____________ concerning

__________description of the case ____________________________.

Or

You are required to produce the following documents to:

Name, Date, time and place

In relation to a hearing between _________names of parties ____________ concerning

__________description of the case ____________________________.

(The tribunal may want to insert a caution about the failure to appear or adhere to the order)

Date and signature of a tribunal official

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A typical interpreter‟s oath is:

Do you swear that you will fairly and accurately translate the questions asked and the

evidence given at this hearing so help you God?

A typical interpreter‟s affirmation is:

Do you solemnly affirm to fairly and accurately translate the questions asked and the

evidence given at this hearing?

8. Case Arguments

Parties will often refer to previously decided cases in support of their arguments to the panel. Those cases

may be publicly available on a website or in a library.

Previous cases help the parties assess the merits of their own case and determine if they should proceed to

hearing and the likely outcome.

Previous decisions help the panel by showing how other panels interpret and apply the legislation and

procedural principles. The closer the facts of the previous case to the case at hand, the more persuasive

the previous case can be to the panel. Previous decisions of another panel are never binding on the panel,

but the decisions of the Alberta courts or Supreme Court of Canada are binding.

Panel decisions should be consistent with earlier decisions from the same panel or from a similar panel to

provide the best benefit to the public, parties and future panels. Consistency refers to the way in which

the panel deals with matters of principles, legislative terms, legislative interpretation and legislative

application, not with the facts of a case.

Panel members need to read and be aware of decisions of other panels. Staff can assist by being aware of

new and leading decisions and bringing those decisions to the attention of the panel.

9. Legal Counsel

Legal counsel participates in hearings in two ways: as a representative of one of the parties or as an

advisor to the panel.

Counsel as Advocate

When legal counsel for a party participates in the hearing, counsel must adhere to all the requirements and

standards of the process required of the party.

In addition, in ARB hearings the complainant must complete the Agent Authorization form before

counsel can attend the hearing to represent the complainant (section 51 MRAC).

Counsel will frequently interact with staff before the hearing to learn about process, deal with disclosure

and access to information, and identify and resolve prehearing or procedural matters. Post hearing,

counsel may challenge the decision in court, prompting staff to prepare the record for the court

application.

Counsel as Advisor to the Panel

Section 17 of MRAC states the ARB may only seek legal advice from a lawyer who is independent of

the parties to the hearing. The municipality is a party to the hearing, so the municipality‟s legal counsel

cannot be used by the ARB.

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Counsel may meet with the panel privately or deal with requests from the panel and may give the panel

legal advice on content and process. Counsel cannot direct the panel on any matter; all decisions, whether

substantive or procedural, remain the panels to make.

Most often counsel‟s advice is not shared with the parties. In some cases, ARB‟s have standard practices

to disclose most information from its independent counsel to the parties (some information counsel would

advise against sharing). Where the counsel‟s advice raises new information or a new legal case or

principle, the parties should be informed and given the opportunity to respond before the panel makes a

decision.

10. Note Taking

Parties take their own notes in the hearing. Panel members should take their own notes to assist them

with the decision making. The clerk should make notes to assist with creating the official record under

section 14 of MRAC.

Tips for the panel’s notes

times of activities in the hearing

witness names

evidence numbers and identifiers

names of panel members

names of those attending the hearing and roles

dates of the hearing

location of the hearing

any commitments by any party to the panel and when required (to follow up)

any commitments or cautions by the panel to the parties and timelines

if the hearing recesses or adjourns, the point the hearing reached and the reason for the

adjournment

any objections or applications raised in the hearing and a summary of the panel‟s decision

and any reasons given during the hearing.

11. Confidential Information

Confidential information may be presented or demanded before or at a hearing. Assessment hearings are

part of the provincial and municipal process, so provincial legislation about personal or confidential

information applies. Provincial legislation provides exceptions to ARB processes from the general rules

which apply to personal or confidential information. These exceptions ensure panels can do their work

and make decisions based on solid information.

Panels and Staff Need to

o know the legislative protections for personal, business or confidential information

o know the exceptions in the legislation for „ hearing processes

o understand that the hearing process and solid decision making can be undermined by

excluding information because of the confidentiality shield

o be sensitive to how they handle confidential or personal information

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o deal with objections or applications in a way that enables consideration of all the factors

o balance the need for information in the hearing with the concept of confidentiality

o find ways to manage the information so that concerns about personal and confidential

information can be minimized or protected during the hearing process

12. Representatives and Agents

Some parties will choose not to present their own case during the process or at the hearing. Some parties

will choose to have another spokesperson or a lawyer or an agent represent them. Under section 51 of

MRAC, a complainant who wants to have an agent represent him or her during the complaint process or

at the hearing must complete and sign the Agent Authorization Form. Section 1(1)(b) of MRAC defines

agent.

Tip: Read the agent authorization form to see what the assessed person or taxpayer acknowledges to, and

what the agent is authorized to do.

13. Record of the Hearing

All ARB‟s must make and keep a record of each hearing in accordance with section 14 of MRAC. It is

important to maintain an accurate record in case a decision of the board is appealed to the Court of

Queen‟s Bench. The parties to the complaint will rely on this record as evidence in their appeal.

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Exercise # 6 – Hearing Process

Instructions:

i. Work in groups of two to answer the questions.

ii. Use the Municipal Government Act, and the Matters Relating to Assessment Complaints

Regulation to help you answer the questions.

iii. When you provide the answer, also give the Part, Division and section of the MGA or

MRAC that gave you the answer.



Questions:

Jurisdiction

1. At the start of a hearing before your local assessment review board, the respondent states that the

complaint was filed after the deadline stated on the assessment notice, and questions the board‟s

jurisdiction to hear the case. The date on the assessment notice was a Saturday, and the complaint was

not filed until the following Monday.

a. Does the LARB have jurisdiction to hear the complaint? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

Legislative reference: _____________________________________________________

Postponements

1. The Complainant sends a letter to the CARB 8 days before the hearing and requests the hearing be

postponed. They explain that the disclosure made by the respondent is highly technical in nature and

they require further time to prepare their rebuttal evidence.

a. When must the complainant submit their rebuttal evidence?

_______________________________________________________________________


b. Does the CARB have jurisdiction to give the complainant more time? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


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2. The day before the hearing, the Complainant calls the LARB stating her godmother in Arizona is

dying and she must leave town to be with her.

a. Should the LARB grant a postponement? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


3. Three days before the hearing the Agent for the Complainant calls the CARB requesting a

postponement as they need more time to prepare for the hearing. All disclosure of evidence has been

made.

a. Should the CARB grant a postponement? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


4. Can an ARB postpone a hearing indefinitely? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


Timelines

1. The Complainant has requested additional time to file her rebuttal evidence stating that as English is

not her first language; she is having some of the documents given to her by the Respondent translated.

She states that the Respondent will agree to an extension of the filing deadline.

a. Can the timeline be expanded and if so, under what conditions? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


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2. On the day of the hearing, the Complainant shows up and states that they have received documents

that were not disclosed to her by the Respondent until the day before the hearing. The clerk of the

CARB confirms that these documents were just received.

a. Can the board hear this evidence? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


Records

1. After the hearing has been completed and the decision published, the complainant appeals to court.

The ARB must put together the Record of Hearing.

a. What documents must be contained in the record?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


b. How long must the board keep these records?

_______________________________________________________________________

_______________________________________________________________________


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Evidence

2. At the hearing, the panel is reviewing the documents filed by both parties. The complainant informs

the board that they forgot to include a key piece of evidence in their disclosure package and attempts

to introduce the evidence.

a. What should the board do in this case?

_______________________________________________________________________

_______________________________________________________________________

Legislative reference: ___________________________________________________

b. What must the board consider should this occur?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

3. The clerk of your board has received a complaint and scheduled a hearing before the LARB. The

clerk informs you that the complainant indicated on the complaint form that they made a request for

information under sections 299 & 300 from the municipality, but did not received it. All disclosure

has been made by both parties and the hearing begins. The complainant begins to present evidence

and remarks that the disclosure made by the respondent is inadmissible because it is represents

information that was not provided to them.

a. What must the board do in this case?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


4. The complainant states that the respondent has brought forward evidence that was withheld from

them when they made a section 299 request to the municipality. The complainant further states that

they were unaware that this information existed. The respondent states that the specific information

the complainant requested was provided and the evidence in question was not specifically requested.

a. Is this a reasonable position for the respondent to take?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

b. What does the legislation state with respect to what information must be provided?

_______________________________________________________________________

_______________________________________________________________________


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c. If the information that was withheld is not relevant to how the assessor prepared the

assessment, should the board consider it or dismiss it?

Why/Why Not __________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

d. If the information that was withheld is relevant to how the assessor prepared the

assessment, what should the board consider as a remedy?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


5. After the hearing concludes but before the panel sends out its decision, the complainant sends in a

letter enclosing a sworn statement from another witness that could not be present at the hearing. The

letter and statement have not been copied to the other party. The clerk tells you about the letter and

statement.

a. What do you do?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


Witnesses

6. During the disclosure process, you are informed that the complainant‟s neighbour will appear and

give evidence about certain critical parts of the complainant‟s case. On the day of the hearing, the

neighbour is unable to attend but has sent a signed statement containing their evidence. All of the

evidence in the statement was previously told to the complainant who now wants to tell you what the

neighbour said to them. In particular, the complainant wants to tell you:

What an appraiser said to them about the effect that the location of their houses had on their

value, and

How many square feet of space was added to the complainant‟s house and what renovations had

been done.

a. Should you accept the signed statement? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

b. Should you hear the evidence regarding what Ms Smith said? Y/N

Why? __________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

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c. If you do hear the evidence, what weight should be given to a. and b.?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

Representatives and Agents

7. A complaint has been filed with no indication that an agent would be representing the assessed

person. On the day of the hearing, the complainant shows up with an individual whom they state is

their agent who will representative them at the hearing.

a. What would the board do in this case?

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


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Tips Around Hearings

These tips are for both the panel and the clerk. Each person needs to be aware of what everyone else is or

should be doing to make the hearing process fair.

Before:

panel check for biases; staff identify potential concerns about bias

staff ensure the proper documents are filed, received, shared before the hearing within the

proper time limits

staff answer inquiries from the parties – about process, legislation, time limits etc.

staff make the hearing arrangements and send out notice of hearing

staff prepare the hearing package/file for the panel

staff and panel come to the hearing well rested and prepared to participate

staff bring the legislation, rules etc

panel and staff read the materials or determine when to read them and how to deal with

questions the panel may have

panel and staff read the legislation and procedures and anticipate any concerns that might

arise at the hearing

staff ask questions of the panel chair if unsure

panel keep an open mind

During:

panel (and staff) remain sensitive to situations raising potential biases

help maintain the hearing decorum – apply the procedures

panel ask appropriate questions – if member is unsure, request a recess to speak with the

panel

panel keep an open mind

panel keep own notes to help with decision making

staff keep the hearing record, list of evidence and witnesses and transcript of the hearing

staff and panel keep hearing fairness in mind at all times

After:

panel set aside the appropriate time to discuss the case to make a decision

panel and staff remain sensitive to situations raising potential biases

staff and panel - use a decision making model to help the panel

determine what the standard for decision making is

panel keep an open mind until you‟ve reviewed all the evidence

members voice input in the decision making

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determine who will write the decision and when the panel will review the draft

panel (and staff) review the draft to provide meaningful feedback

panel and staff keep fairness in mind

staff finalize the record

staff publish the decision and deal with inquiries about it

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Module 4 – Decision Making and Writing

Decision Making

Decision making is a process that, when applied properly, will lead the panel to an informed, well

founded and logical decision that is easy to explain and justify. The Municipal Government Board has

provided a model that incorporates a five step process that can be used by ARB‟s to produce good

decisions. In general, these five steps are:

1. identifying the issues in support of the matters for the complaint

2. identifying the legislative requirements of each matter

3. identifying and sorting the relevant evidence

4. applying the facts to the legislation

5. reaching the decisions

Each step involves a separate action by the panel and progresses the panel to an informed, well founded

and logical decision which is easy to explain and justify. In detail, the five steps are:

1. Identifying the issues in support of the matters for the complaint.

The assessment complaint form identifies the matters, and the disclosure evidence supports

those matters; the panel must not hear any matter not identified on the complaint form, or any

evidence that was not disclosed.

2. Identifying the legislation and framing the issues/questions and conditions or legislative

requirements of each issue

The assessment complaint raises the issues; the panel cannot deal with issues not raised in the

complaint.

The panel then searches the applicable legislation to determine the sections that apply.

To determine if the panel has the jurisdiction (or authority) to deal with the case.

To read the sections and make a list of the conditions, standards, pre-requisites that must

exist for it to decide the case. This becomes the list of the factual items the parties must

prove to obtain the answers they seek (the conditions, criteria, required elements, etc).

Next, the panel will state the issues and conditions as questions to focus themselves and to move

them towards answering the questions for the parties.

3. Identifying the relevant evidence and making findings of fact on the evidence

The panel sorts the evidence received in the hearing according to the list of conditions

under each issue. The key to sorting the evidence quickly is to apply the relevance

test.

Then the panel takes each group of evidence and assesses it to determine if the

condition has been met or proven or not.

The panel repeats the previous step over and over until all the evidence has been

examined.

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4. Applying the facts to the legislation to reach conclusions and expressing the decision maker’s

rational for the conclusion.

The panel goes back to the list from Step 2 (the legislation) to determine what

conditions are mandatory and what conditions are optional for the party to prove.

Mandatory conditions must be established through evidence or the complainant

will not be successful. Optional conditions mean the party may be able to prove

only one of a list or prove the item in a number of different ways.

Then the panel does a comparison of what must be proven to the list in step 3

(what has been proven) to come to a logical answer to the questions posed in the

issues. Has the legislative test been met?

Where the two lists match, the legislation will direct the panel to the answer on

the issue.

Where the two lists do not match, the panel will not have the authority to give

the answer the complainant seeks and will have to dismiss the complaint or deny

the application.

The panel‟s discussion about how and why it makes the choices it does become the panel‟s reasons for

decision.

5. Reaching the decisions and formulating the directions for implementation

Finally, the panel collects all of its decisions on the issues and reaches its final

decision on the complaint.

The panel then identifies the directions or remedies the case requires and any

details of implementation.

A copy of the “Assessment Review Board Decision” template can be found in the handouts

section of your binder.

Decisions of an Assessment Review Board –Key Legislation

The decisions of an ARB must adhere to the legislation that governs the complaint process. The

MGA outlines what an ARB or the MGB must consider when it makes a decision.

Section 467(1) An assessment review board may, with respect to any matter referred to in section 460(5), make a

change to an assessment roll or tax roll or decide that no change is required.

(2) An assessment review board must dismiss a complaint that was not made within the proper time or that

does not comply with section 460(7).

(3) An assessment review board must not alter any assessment that is fair and equitable, taking into

consideration

(a) the valuation and other standards set out in the regulations

(b) the procedures set out in the regulations, and

(c) the assessments of similar property or businesses in the same municipality.

(4) An assessment review board must not alter any assessment of farm land, machinery and equipment or

railway property that has been prepared correctly in accordance with the regulations.

Assessment review board decisions

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Section 468(1) Subject to the regulations, an assessment review board must, in writing, render a decision and

provide reasons, including any dissenting reasons,

(a) within 30 days from the last day of the hearing, or

(b) before the end of the taxation year to which the complaint that is the subject of the hearing applies,

whichever is earlier.

(2) Despite subsection (1), in the case of a complaint about a supplementary assessment notice, an amended

assessment notice or any tax notice other than a property tax notice, an assessment review board must render its

decision in writing in accordance with the regulations.

Decisions of the Board – MGB

Section 499(1) On concluding a hearing, the Board may make any of the following decisions:

(a) make a change with respect to any matter referred to in section 492(1), if the hearing relates to a

complaint about an assessment for linear property;

(b) make a change to any equalized assessment, if the hearing relates to an equalized assessment;

(c) decide that no change to an equalized assessment or an assessment roll is required.

(2) The Board must dismiss a complaint that was not made within the proper time or that does not comply with

section 491(1), (2) or (3).

(3) The Board must not alter

(a) any assessment of linear property that has been prepared correctly in accordance with the regulations,

and

(b) any equalized assessment that is fair and equitable, taking into consideration equalized assessments in

similar municipalities.

(4) The Board may, in its decision,

(a) include terms and conditions, and

(b) make the decision effective on a future date or for a limited time.

Board decisions – MGB

Section 500(1) Subject to the regulations, if the hearing relates to a complaint about an assessment for linear

property, the Board must,

(a) in writing, render a decision and provide reasons, including any dissenting reasons,


(b) before the end of the taxation year to which the assessment that is the subject of the hearing applies,


(2) Subject to the regulations, if the hearing relates to a complaint about the amount of an equalized assessment,

the Board must, in writing, render a decision and provide reasons, including any dissenting reasons,


(b) within 150 days from the date the Minister sends the municipality the report described in section

320,


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Figure 3 – Sample - Assessment Review Board Decision Making Model on Residential Property

complaint under s. 460(5) MGA

• matter for complaint under s. 460(5) MGA ?

• property type is within jurisdiction

• s. 467(2) MGA and s. 2(2) MRAC jurisdiction - form of complaint, filed within time, complaint fee paid ?

• if not, complaint is invalid and panel must dismiss

• if yes, proceed to next step

s. 467(1) MGA

• matters 1, 2, 4 - 10 on the complaint form

• facts not established to prove item incorrect - dismiss

• facts established to prove item incorrect - change the roll

s. 467(3) MGA

• any matters under 3 (assessment amount), on the complaint form

• is the assessment fair and equitable?

• a) did the assessor use valuation and other standards in the regulations - the market value model standard - including the appropriate time adjustments

• b) did the assessor use the procedures set out in the regulations

• c) are the comparators similar in the same municipality

• establish facts to prove what the complainant alleges - eg. my assessment is wrong because of location or condition or improvements or the assessor did not use similar comparators.

• if facts not proven - dismiss the complaint

• if facts proven - does it change the comparables? Does it make the assessment unfair or unequitable? If yes, uphold the complaint and change the assessment amount. If no, dismiss the complaint.

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As you can see from the chart, an ARB begins the decision making process as soon as a complaint is

received by the municipality. The first thing an ARB must deal with is whether they have jurisdiction to

hear the complaint. The legal tests that must be applied to every complaint are the same, and if the

complaint fails any of the legal tests with respect to the filing requirements, legislation states that it must

be dismissed.

So let‟s look a little closer at what those filing requirements are, and what board members should be

looking for when determining whether the board has jurisdiction to hear the matter(s).

In order to file a complaint about an assessed property, the complainant must do so in accordance with

section 460 of the MGA. Section 460(2) states that the complaint must be in the form prescribed in the

regulations. The complaint form is contained in Schedule 1 of MRAC, and is therefore a regulated

document. If completed correctly, it will meet the filing requirements of section 460.

Issue 1: Is the complaint filed in accordance with the regulations?

Legal Test: Is the complaint on the regulated form? s. 460(2) MGA, Schedule 1 MRAC

If No – Dismiss complaint as prescribed in s. 2(2) of MRAC, s. 18(2) MRAC

If Yes – move to next step.

*(if a complaint is not filed on the prescribed form, is it automatically invalid?)

Legal Test: Was the complaint fee paid at the time the complaint was submitted? s. 460(2) MGA

If No – Dismiss complaint as prescribed in s. 2(2) of MRAC, s. 18(2) MRAC


*(if a complaint fee was not included with the complaint, is it automatically invalid?)

Issue 2: Was the complaint filed on time?

Legal Test: Was the complaint filed by the date specified on the municipality‟s assessment notice,

and what legislation may have an effect on that date? s. 309(1)(c) MGA, s. 284(3) MGA, s.

605(1) MGA, s.3(1) Interpretation Act

If No – Dismiss complaint as prescribed in s. 467(2) of the MGA.


*(does the Interpretation Act factor into whether the complaint was filed on time?)

Issue 3: Is the property type within the boards’ jurisdiction to hear?

Legal Test: Does the board have jurisdiction to hear the complaint? S. 460.1 MGA

If No – Send complaint to the proper board to hear. S. 460.1 MGA


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Issue 4: Are the matter(s) for the complaint identified?

Legal Test: Are the matter(s) for the complaint indicated on the complaint form? s. 460(5) MGA

If No – Dismiss complaint as prescribed in s. 2(2) MRAC, s. 18(2) MRAC


Issue 5: Has the complainant provided the information required?

Question: Has the complainant complied with section 460(7) of the MGA?

If No – dismiss complaint as prescribed in section 467(2) of the MGA.

If Yes – move to next step (merit hearing).

As you can see, a board has many things to consider with respect to the validity of complaints that are

filed. The clerk of the board may point out some of these issues; however, it is the responsibility of the

panel to check these issues on every complaint. It is important for you to remember that only a panel of

the board can make a decision on these issues – not a clerk or other ARB staff.

The issues listed above are considered “administrative” matters and may be dealt with by a one member

panel of the board. Part 3 of MRAC dictates the process that must be followed if a one member panel is

to hear and decide on any matter. Please note that the timelines for hearings on administrative matters are

different than those for merit hearings.

Is it necessary to document these pre-hearing decisions in the final decision of the board? Maybe. If a

complaint has been filed in accordance with the regulations, it is not necessary to document these details;

however, if a complaint is to be dismissed on an administrative matter, this decision must be in writing

and in accordance with the MGA and MRAC.

At the merit hearing, you need to be aware of the regulations with respect to the evidence that has been

disclosed prior to the hearing, and the evidence that is presented at the hearing. An ARB must not hear

any issues in support of a matter that has not been identified on the complaint form. s. 5(1), 9(1), 22(1)

and 34(1) of MRAC.

Assessment Review Board Decision Making Model

To assist board members when making a decision, a decision making model used by the Municipal

Government Board can be found in the “Handouts” section of your binder.

Burdens of Proof and the Standard of Proof

When the panel is making its final decision, it must know and consider which party had the obligation to

bring enough evidence to convince the panel in its decision. The panel must also know how much

evidence is required to convince the panel. The courts call these terms the legal burden of proof and the

standard of proof.

Each party who alleges some set of facts or circumstances before the panel has the obligation or burden to

prove what it alleges. This is called the “evidentiary burden of proof”. For example, if a complainant

alleges the repairs to their roof will cost $9,000.00, they must prove that cost to the panel. They prove the

cost by bringing evidence in the hearing, such as the written estimate from a window supplier or the

verbal testimony of the estimator from the window supplier. Sometimes the other party will agree and the

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proof comes from the agreement of the parties. For example, the assessor may agree with the complainant

that the windows will cost $9,000.00 to repair; then there is no written estimate or witness testimony is

required.

A second burden of proof is the “legal burden of proof”. The party who initiates the case (complainant or

respondent) carries the obligation (or burden) to convincingly prove its case in order to obtain the

outcome it seeks. The legal burden of proof is measured at the end of the case, using all the evidence

brought by all the parties. This means the party starting the case can use its own evidence and any

evidence from the other party that helps to demonstrate everything the law requires the complainant to

prove.

In 2009 the Supreme Court of Canada clarified for everyone that the “standard of proof “ the ARB must

apply in a civil case is the balance of probabilities. ARB cases are civil cases; therefore the balance of

probabilities is the standard of proof before the ARBs. This means the panel considers all the evidence at

the end of the hearing and decides whether the party who started the case has proven their case on a

balance of probabilities (sometimes stated as “more likely than not” or “fifty percent plus one”.

Weighing the Evidence and Making Findings of Fact

The panel weighs the evidence at the end of the hearing and makes any required findings of fact. A panel

does not have to weigh the evidence if the parties agree to the fact or if the evidence about the fact is

undisputed (evidence from one party is not contradicted by the other party); the panel needs only confirm

the fact.

Where the parties disagree about the fact and call competing evidence, the panel must sort through the

evidence and assess its value or priority in assisting the panel to find the fact. This is a common

occurrence when dealing with competing experts. Some tips and questions on weighing the evidence

include:

prefer direct evidence (first hand) over circumstantial (proven by indirect means)

decide if corroboration is required and if so does it exist

be clear about the purpose of the evidence – what is intended to prove

who brought the evidence – has the party met its evidentiary burden

how does the evidence intertwine with the other evidence on this point

how does the oral evidence compare to the documentary evidence

is the party attempting to prove a fact using only hearsay evidence

how do the various pieces of evidence on this point compare

which witness has more qualifications

which witness had the most direct view or participation

which witness took notes at the time

When dealing with competing experts consider:

the qualifications of the experts

which expert has the most direct education and experience

which expert has the best experience

which expert used the most similar process to the one under consideration

which expert used the most timely information

which expert used information most similar to the information in the assessment

how did the experts perform their tests or research

which expert is best able to explain their opinion and the basis for the opinion.

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Decision Making Tips

o bridge gaps to consensus

o use a structure for decision making - same for all panels

o discuss the process and the merits each time

o remember-it‟s all about the decision not the panel or staff: “don‟t take it personally”

o ground the decision in legislation

o deal with one issue at a time instead of everything together

o sort evidence by issue and legal tests

o use evidence evaluation tools

- agreed

- uncontested

- similar

- contested

o apply code of conduct, if required, to resolve collegial disagreements among the panel

o be collegial

o express curiosity rather than defensiveness

o work to the result not from the result

o do not ask a panel member to defend a personal decision made during decision making - rather,

re-examine the pieces in decision making and the evidence and legislation. If the panel member

persists in the dissenting decision, the panel member is able to more clearly express the reasons

for the dissenting opinion in a written dissent.

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Decision Writing

A Written Decision Is...

A written decision is the method of communicating the decisions and reasons of the panel to the parties.

It is the voice of the panel in written format. The quality of the decision reflects the quality of the

decision making process. A panel cannot clearly write a decision it has not made; do not use the decision

writing process as a substitute for decision making. Panels issue written decisions to provide clarity and

certainty about their decisions.

Just as different panels would speak their decisions in different ways, so will panels write their decisions

differently. Although Alberta Municipal Affairs cannot expect that every decision will be identical, it

can expect that decisions will follow a consistent format and contain consistent information. The decision

should be identifiable as an assessment decision from the quality and general format, not from the use of

boilerplate terminology.

Why ARB’s Write Decisions?

o to explain

o to persuade

o to inform

o to educate

o to meet the statutory requirement

o to prevent arbitrary decisions

Who do Panels Write For?

o the complainant

o the respondent

o assessors

o professionals in the industry

o assessment organizations and groups

o other panels

o the courts

o the department and future legislators

o the public.

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What Defines a Well Written Decision?

A well written decision:

o meets legislative requirements

o is published within the mandated timelines

o clearly states the questions/matters the panel will address

o identifies and explains the law and policy applicable to each issue

o explains how the panel interpreted the legislation and policy and applied it to the facts of the

case

o is clear, succinct and understandable

o has a structure and a logical flow

o can be implemented without further clarification

o uses plain, everyday language where-ever possible and where not, uses and explains terms in

a consistent manner

o uses headings, tables of contents, bullets, addendums, summaries, lists and similar tools to

enhance the readability of the decision

o is accurate in spelling, names, quotes and references, grammatically correct, logical.

A well written decision also:

o demonstrates the panel considered the information and arguments put before it

o reveals the panel heard and weighed the evidence before it, showing how it made findings of

fact relevant to the questions

o reflects the expertise of the panel in its reasons and considerations

o where there is conflicting relevant evidence, shows how the panel resolved the conflicts and

which evidence it relied upon and why

o shows the panel used a logical, orderly process to make its decision and that each decision

flows from and melds with the previous decision and leads to a logical conclusion that

resolves the matters

o makes the panel's decision-making thought process clear and understandable.

Basic Pieces of a Written Decision

Sections 13 and 25 of MRAC set out the requirements for an ARB decision which include:

o a brief summary of the matters or issues contained on the complaint form

o the ARB‟s decision on each matter or issue

o the reasons for decision, including any dissenting reasons

o any procedural or jurisdictional matters that arose during the hearing and the ARB‟s decision on

each.

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The typical pieces of a well written decision include the following. A panel need not use these labels and

may change the order to make the most sense for a particular case. The amount of time the panel has to

write the decision will naturally affect how extensive it makes each section.

Nature of Application/Introduction

o identify the parties, relevant statutory provisions, subject matter and what is being sought (who,

what, when, and where)

o state in own terms (versus “pleadings”)

The Issue or Issues

o the matters raised in the complaint

o identify at outset (part of introduction or separate)

o guidepost to what is relevant

Legislative Tests

o drawn from the Act or Regulations (both MRAC and MRAT can apply)

o identify the tests the panel applied

o usually included in the Analysis section or stand alone section

Positions of the Parties

o may not require separate section

o do not regurgitate submissions, just summarize

o make reference to arguments not expressly considered by the panel and why those arguments

were not addressed


Relevant Facts

o not the evidence but findings of panel

o decide on logical order or structure (chronological, by subject, etc.)

o dealing with conflicting testimony (credibility)

o documentary evidence

o only the relevant facts (may want to allude to irrelevant testimony)

o ensure accuracy (ire of parties and prejudice on appeal)


Reasons

o for factual findings

o for any interpretations of the legislation or MRAC (e.g. the meaning of “complete” if not

defined)

o for reaching the conclusions reached by the panel (we conclude because …)


o some things to avoid: “leap of faith” (i.e., no real explanation); “cut and paste”; overuse of

precedent; extensive quotations

Reasons / Analysis – An Alternate

o essence of reasons: why was the decision reached?

o logical progression (conclusion appears obvious from facts and discussion of legal principles)

o includes legislative tests, relevant facts, reasons

o some things to avoid: “leap of faith” (i.e., no real explanation); “cut and paste”; overuse of

precedent; extensive quotations

o may be a combined section incorporating Reasons, Legislative Tests, Relevant Facts, and

Positions of the Parties

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Conclusion

o succinct statement of decision on the appeal

o may want to have summary for each issue in longer decisions and a case conclusion of all the

issues

Order

o clear statement of the directions and times given to the parties to implement

Sample Decision Template for Assessment Review Boards

Assessment review boards must issue their decisions, in writing, within 30 days from the last day of the

hearing, or before the end of the taxation year.

Panels can ease the writing obligation by using a standard structure for their decisions which prompts

them to provide certain information in every case. One such sample might be the one on the following

page.

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ORDER No. 0015444

DECISION

BEFORE THE (LOCAL/COMPOSITE) ASSESSMENT REVIEW BOARD

On ________________

IN THE MATTER OF THE MUNICIPAL GOVERNMENT ACT, STATUTES

OF ALBERTA 2000, CHAPTER M- 26.

AND IN THE MATTER OF THE ASSESSMENT COMPLAINT

BETWEEN:

______________ Complainant

AND:

____________________ Respondent

Topic: (type of complaint)

Property: (address)

Tax Year: ___________

Assessment: $_____________

Matters Identified on the Complaint Form: (the matters are checked)

Complaint

Topic

Matters from

sec. 460(5) MGA

Decision Reasons Any Dissenting

Reasons?

1. the description of the property or

business

2. the name or mailing address of an

assessed person or taxpayer

3. an assessment

4. an assessment class

5. an assessment sub-class

6. the type of property

7. the type of improvement

8. school support

9. whether the property or business is

assessable

10. whether the property or business is

exempt from taxation

Overview of the Property and Initial Assessment:

The property is ___(description)______________. The property is assessed in

________ condition for an assessed value of $_________.

ISSUES (use the ones you need)

1. Is the ____________(item 1, 2, 4 – 10) correct?

2. Is the subject property fairly and equitably assessed? ( see section 467 of the MGA)

3. Can the ARB deal with Mrs. Green‟s complaint about __________ (e.g. being over taxed)?

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PROCEDURAL AND JURISDICTIONAL MATTERS ARISING DURING THE

HEARING

Identify the matter, what the ARB ruled and why. If none raised, say none raised or delete this

section from the decision.

DECISION

Under section 467(1) the ARB changes the assessment roll as follows: OR the ARB finds no

change is required to the assessment roll. As a result, the complaint is granted / dismissed.

[The assessment value is set at $___________.] [The ARB has no jurisdiction to hear

____________.] Use pieces that fit the case.

Summary of Complainant’s Position

___________ complained that __________________. The complainant asked that the property

assessment be set at $______________.

Summary of the Respondent’s Position

The Respondent stated that the assessment set by the ARB was correct or / and fair and

equitable.

Summary of the Evidence on the Issue of _____________: (repeat for each issue)

The complainant‟s evidence included:

1. Her testimony that

a. ___________________

2. _________ testimony as the expert appraiser and his appraisal report showing the current

market value of the property at ___________ is $__________.

3. Documents showing ___________________

The Respondent‟s evidence included:

1. documents showing

2. the assessor‟s testimony that _______________.

REASONS and LEGISLATION

Issue ________ – Assessment Amount

Under the Municipal Government Act, the ARB cannot change an assessment which is fair and

equitable.

MGA 467 (3) says An assessment review board must not alter any assessment that is fair and equitable, taking into

consideration

(a) the valuation and other standards set out in the regulations,

(b) the procedures set out in the regulations, and

(c) the assessments of similar property or businesses in the same municipality.

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The ARB examines the assessment in light of the information used by the assessor and the

additional information provided by the Complainant. The Complainant has the obligation to

bring sufficient evidence to convince the ARB that the assessment is not fair and equitable.

The ARB reviews the evidence on a balance of probabilities. If the initial assessment fits

within the range of reasonable assessments and the assessor has followed a fair process and

applied the statutory standards and procedures, the ARB will not alter the assessment. Within

each case the ARB may examine different factors, depending on what the complaint raises as

concerns.

In this case, we first examined the evidence about the condition of the property.

_________________ We find the property to be in __________ condition.

Next, we looked at _____________. We examine the comparables provided by both parties.

Under the Matters Relating to Assessment and Taxation Regulation, an assessment must be

based on the market value of the property on July 1 of the year before the assessment. In this

case the date is July 1, 2009, this being a 2010 assessment.

1 In this Regulation,

(f) “assessment year” means the year prior to the taxation year;

2 An assessment of property based on market value

(a) must be prepared using mass appraisal,

(b) must be an estimate of the value of the fee simple estate in the property, and

(c) must reflect typical market conditions for properties similar to that property.

3 Any assessment prepared in accordance with the Act must be an estimate of the value of a

property on July 1 of the assessment year.

6(1) When an assessor is preparing an assessment for a parcel of land and the improvements to

it, the valuation standard for the land and improvements is market value unless subsection (2)

or (3) applies.

The Complainant ____________________

The Respondent presented pre-valuation comparables that support the assessment.

_____________. There is no evidence of merit to vary the assessment further.

Issue _#2______ – Overtaxed

The ARB has no jurisdiction to hear a complaint about a property tax because the Act does not

allow it.

________ did not raise the matter in her complaint and section 5(1) of the Matters Relating to

Assessment Complaints Regulation says this ARB has no authority to hear matters not marked

on the complaint.

Dated at Edmonton, Alberta this 10th day of November, 2010 and signed by the Presiding

Member on behalf of all three panel members who agree with this decision.

John John, Presiding Member

LARB/CARB

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Tips for the Author

use the outline and notes from the decision making session to create the outline, findings,

reasons and results of the decision

flesh out the outline so it makes sense to a reader – use bullets or full sentences or a

combination

insert headings to help the reader

check the content against MRAC to ensure you have everything included

compare the decision to the style guide to see that the style guide has been followed and if not

make changes

once the first draft is complete, leave it overnight if possible before beginning to edit

read the decision again – does it make sense? Does it accurately set out the decision of the

panel or majority? Is it clear? Begin to edit until satisfied.

respect that writing is difficult work, often done in a time crunch.

Reviewing a Decision in Draft

Either one of the panel members or someone else may write the decision after the panel has made the

decision and is able to convey its reasons.

A best practice for decision writers is to have someone else review the draft decision. The following tips

can assist a person to collaboratively review a decision drafted by someone else.

Tips for Commenting on a Decision Written by Someone Else

respect the final decision but look for the way the written document conveys that decision

look at the decision from the complainant‟s perspective – will the complainant understand the

decision and reasons for decision?

provide feedback on accuracy, clarity, understand ability, logic, flow, structure

point out where the decision does not include the pieces required by MRAC

provide suggestions on grammar but respect the final choice may rest with someone else

compare the decision to any style guide adopted by the ARB to see that the style guide has

been followed and if not make suggestions for improvement

point out gaps in logic or flow but leave the final alteration to the writer and final choices to

the panel

respect that writing is difficult work, often done in a time crunch, and that your choice of

words may not be the same as the writer‟s

Costs and Penalties

Part of the decision making obligation of panels can be to award costs or penalties for actions or positions

taken during the process. Each ARB may have different powers and different legislative requirements.

A CARB and the MGB have authority to award costs under section 52 of MRAC. A LARB does not

have authority to award costs. Under section 52of MRAC:

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any party to a hearing can apply to have the CARB or MGB award costs

a party must apply no later than 30 days after the hearing ends

when deciding whether to award costs after an application, the CARB or MGB may consider

o whether there was an abuse of process

o whether the party applying for the costs incurred additional or unnecessary expenses

as a result of an abuse of process.

the CARB or MGB can decide on its own initiative and at any time to award costs

the panel can only award costs set out in Schedule 3

MRAC dictates who pays the costs

Schedule 3 states a CARB or MGB may award costs if it determines a hearing was required to

determine a matter that did not have a reasonable chance of success.

Important Notes:

o Before a panel decides to award costs or how much, it must (as part of fair process) allow each

party to present its evidence and arguments about costs.

o Costs under section 52 and Schedule 3 of MRAC are punitive in nature.

o MRAC does not define abuse of process but Schedule 3 outlines the types of conduct that might

guide a panel to determining whether an action is an abuse of process.

o Generally a panel would not award costs if the complainant withdraws a matter during the

disclosure process or if the complainant withdraws a matter after disclosure but before the hearing

begins.

o MRAC does not define reasonable chance of success in Schedule 3 and panels will have to decide

what that phrase means. Generally the mere fact the complaint was not successful does not mean

the complaint did not have a reasonable chance of success.

Tips When Dealing With Costs or Penalties

o Determine if the legislative standard is mandatory or discretionary

o If the panel has a discretion to set or alter the costs or penalties, consider all the evidence

and arguments about what circumstances exist for lesser, higher, prescribed or no costs or

penalties

o Determine what meaning to give to words like “abuse of process” – is this mere

inconvenience or extra work or time? Is it intentional conduct which undermines the

fairness of the process; is it something else?

o Consider any information from the parties that might excuse or justify the action or

position

o Consider any information showing the other party has contributed to the offending action

o Consider any information about prejudice arising from the offending action

o Consider what will be fair to the other party in all the circumstances

o Take a balanced approach – cases will arise which are better or worse than this case.

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Exercise #7 - Decision Making & Writing

The following case study is based on an actual complaint that was filed in the Municipal District of

Foothills No.31. In this exercise, you will only be dealing with non- assessment matters. This case study

will be continued in the Principles of Assessment course to include assessment related matters.

To simulate a panel of the board, you will be separated into groups of three and asked to review the issues

and make decisions on each of those issues using the decision making model. You will then write your

decision on each of these matters keeping in mind the legislated requirements for decisions.

Instructions:

Each member of your panel should read the attached case study carefully.

As a group, make your decisions on each issue and remember to include:

o the issue(s) that must be decided upon.

o the legislation (if any) that pertains to the issues.

o any principles of natural justice (if any) that may need to be considered for the issues

o the appellant‟s arguments

o the respondent‟s arguments

o your findings of fact, and reasons for your decision on each issue

Write your decisions on each issue, and review for content.

Select a spokesperson from your “panel” to report to the group

*Remember, if there is a dissenting decision on any issue, that dissent must be included in the overall

decision.

The Case to Be Decided

Cargill Limited, represented by Wilson Laycraft - Complainant

and

Municipal District of Foothills No. 31, represented by Brownlee LLP - Respondent

BACKGROUND/SUMMARY:

The Complainant owns and operates the Cargill Foods High River beef processing plant. The Complaint

is against the property assessment for Taxation Year 2010 which is comprised of three parts:

The fully integrated beef processing plant has capacity to process 4,500 head of live cattle per day.

Approximately 2,000 workers, operating in two shifts, operate the plant. The facility reduces live cattle to

dress carcass form as well as processing and packaging certain by-products such as edible and inedible

components and hides. There is significant refrigerated freezer and cooler space within the plant for

storage and preparation of finished product for shipping to customers. Much of the handling processes

are fully or partially automated.

Originally constructed in 1989, the plant has been expanded over the years to its current size and capacity.

The plant has a floor area of over 430,000 square feet. Ancillary buildings on site add almost 29,000

square feet of building area. The entire plant utilizes about 60 acres of the 83.02 acre parcel. The

property is situated on the east side of Alberta Highway 2A, about three kilometres north of the Town of

High River.

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PRELIMINARY ISSUES:

The Respondent objected to the Composite Assessment Review Board (CARB) panel as constituted,

making application for CARB Presiding Officer W. Kipp to recuse himself from this hearing. Grounds

for the application were that the Respondent has a reasonable apprehension of bias as follows:

Mr. Kipp is involved in subsisting litigation (Genesis Investors v. Genesis Land Development Corp.).

Brian Gettel, witness for the Respondent, is involved in the same litigation supporting an adverse interest.

Mr. Kipp has been retained by the solicitor for Cargill in the past, and has appeared in at least one MGB

(Municipal Government Board) assessment hearing (Corridor Pipeline) as an expert witness for the

solicitor for Cargill.

Mr. Gettel, witness for the Respondent, had pointed out to counsel for the Respondent, that he and Mr.

Kipp were both involved in the “Genesis” litigation matter, each acting for different parties to the

litigation. Other than some speculation regarding the litigation and the roles of Mr. Gettel and Mr. Kipp,

counsel for the Respondent had no further information. Counsel conceded that the matter had not been

fully explored.

With respect to the involvement of Mr. Kipp with the solicitor for the Complainant, counsel for the

Respondent indicated that Mr. Kipp had acted as an expert witness for the solicitor at a Municipal

Government Board hearing regarding as assessment of the “Corridor Pipeline.” There was no indication

whether or not the Corridor Pipeline appeal has any similarities to this Cargill complaint. Any present or

past link with either party could lead a reasonable person to think that there could be a reasonable

apprehension of bias.

Counsel for the Respondent cited cases where apprehension of bias had been an issue. Two Municipal

Government Board (MGB) cases were mentioned. In one case, a former MGB member was appearing

before that board as a witness. That was not found to be a situation where there was a reasonable

apprehension of bias. In the second situation, where Board members were sitting on a case where there

were similar issues to cases where those members had previously sat and decided, there was no finding of

an apprehension of bias.

Counsel for the Complainant pointed out that the passage of time is a very relevant factor to consider.

Further, just because a board member has sat on a prior case involving similar subject matter does not

lead a reasonable person to an apprehension of bias. From a practical perspective, the community of

appraisers is quite small. Reference was made to the “Boardwalk” case heard by the Alberta Court of

Appeal a number of years ago. In Boardwalk, a judge was asked to step down because that judge had

prior dealings with the same tax consulting company that was representing a party at the appeal hearing.

Different individuals were involved and the judge had resided in a different city. He added that Mr. Kipp

had not performed any work for his law firm since being appointed to the MGB and that there is no

present relationship that would give rise to an apprehension of bias. By his recollection, any work Mr.

Kipp had done on the Corridor Pipeline case had been four or five years old so time had well passed for

any reasonable apprehension of bias. With regard to the Genesis case, it appeared from the Respondent‟s

comments that Mr. Kipp was playing a role as an expert in that case. There would therefore not be a

relationship between him and Mr. Gettel. In this current situation, there was no suggestion that Mr. Kipp

had any past or present link with the Complainant, Cargill. Simply because Mr. Kipp had performed

work for a law firm in the past does not give necessarily to reasonable apprehension of bias.

The duty of the Board, not only Mr. Kipp but also for the locally appointed members is to make a

decision independent of all municipal influences. Board members must approach the case objectively and

bring their own independent analysis.

In closing, Counsel for the Respondent stated that cases involving judges and allegations of reasonable

apprehension of bias should be viewed somewhat differently than at this level (the Composite Assessment

Review Board level).

The Respondent noted that land had not been identified on the Complaint Form (Exhibit 1) as an issue.

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For that reason, land would not be something this Board could deal with under Section 9(1) of the Matters

Relating to Assessment Complaints Regulation (Alberta Regulation 310/2009) (MRAC).

The Complainant informed the Board that Mr. Beatty, the appraisal witness for the Complainant, had

undertaken a market valuation of the real property which included both land and buildings. It would

therefore be up to the Board to decide whether land is an issue in the complaint.

The Respondent wanted clarification of the revised assessment being requested by the Complainant. On

the Complaint Form (Exhibit 1), the requested assessment was $75,000,000. In evidence submitted to the

CARB, the request was for an assessment of $50,353,667. As in the prior issue, the CARB‟s jurisdiction

is prescribed by 9(1) of MRAC and that the value set out on the Complaint Form should be the one to

consider at the hearing. The intent of the new rules and form for property assessment complaints was to

get early disclosure regarding the issues so that the parties knew what the complaint was about and thus,

be able to proceed accordingly. Given the significant difference between the number on the Complaint

Form and the number in evidence, that is more than was intended by the legislators when they passed

amendments to the Municipal Government Act and its related regulations such as MRAC.

On behalf of the Complainant, Counsel pointed out the area on the filed Complaint Form where it was

stated that the Complainant was seeking opinions from outside experts. The $75,000,000 number on the

form was a preliminary number only. Prior 2010 CARB decisions from a number of jurisdictions across

the province had dealt with this matter and the requests on Complaint Forms were accepted as preliminary

numbers based on an initial analysis. The CARB should not be locked in to a specific request such as

$75,000,000. There could be findings by the CARB that the proper assessment lies between the current

assessment and the requested assessment and the CARB would have its hands tied if it was bound by one

number or the other.

The Respondent informed the CARB that it was their understanding that other CARB decisions regarding

the weight to be given the form and its contents had gone both ways – some in favour of the Complainant

and others in favour of the Respondent.

It was the Respondent‟s position that the rebuttal report filed by Mr. D‟Easum (Exhibit 5A) was not

rebuttal evidence. It was merely new evidence that could have and should have been properly disclosed

during the required evidence disclosure time period. Section 8(2)(a) of MRAC sets out clear rules on

disclosure and that section must be rigorously followed. It is improper for a party to put in its case

through rebuttal when it should have been done in the initial filing. In the case of the D‟Easum rebuttal

report, it does not respond to any evidence that was put in by the Respondent. It simply attaches a

number of documents without explanation or reference to Respondent evidence. MRAC requires that

rebuttal evidence be in sufficient detail to allow the Respondent to respond or rebut the evidence at the

hearing and this document does not do that.

The Complainant maintained that the D‟Easum rebuttal report was responsive to what is in the Driscoll

report (Exhibit 4D). Links between the content of the Driscoll report and the D‟Easum rebuttal report

were pointed out to the CARB by reference to specific pages in the documents.

References and Resources




Foundation of Administrative Justice Certificate Program Courses www.FOAJ.ca

Administrative Decision Writing, A.C.L. Sims, February 14, 1994 C.I.A.J. Conference http://www.ciaj-

icaj.ca/

Reasons for Decision by ARB, Kerans, J., February, 1994 C.I.A.J. Conference

An Editing Checklist, Maryhelen Vicars, February, 1994 C.I.A.J. Conference

A Few Chose Verses from the Plain English Bible, Maryhelen Vicars, February, 1994 C.I.A.J. Seminar

“The Decision Writing Process”

Plain English for Lawyers (2nd

edition), Richard Wydick, (1985) Carolina Academic Press

Practice and Procedure Before ARBs, MaCaulay & Sprague

Citation, Canadian Citation Committee, (2001) www.lexum.umontreal.ca/citation./en/index.html

Hallmarks of Quality Appeal Division Decisions, (2001) B. C. Workers‟ Compensation Reporter, Vol. 17,

Appeal Division Decision No. 33

Standards for the Preparation, Distribution and Citation of Canadian Judgements in Electronic Form,

Canadian Judicial Counsel (1996) www.cjc.gc.ca

Powers and Procedures for ARBs in Alberta (December, 1999) Alberta Law Reform Institute

Plain Language, Clear and Simple (1991) Canada Communication Group - Publishing

Advising the Board: The Scope of Counsel’s Role in Advising ARBs, Murray Rankin and Leah Greathead,

CDN. Journal of Administrative Law & Practice 7 C.J.A.L.P. 29

Preparing to Write Clearly, (1996) Harper and Associates, B.C. Council of ARBs http://www.bccat.net/

Fact Finding and the Judiciary, Judge Gerald T. G. Seniuk and John C. Yuille, Ph. D., (1997) C.C.A.T.

Conference

Behind Closed Doors: The Process of Making Decisions, Innis Christie (1997) C.C.A.T. Conference http://www.ccat-ctac.org/en/conferences/papers/index.php

All About Decision Letters: WCB Style for Decision Letters (1999) Sims Group http://www.simsgroup.com/

Arbitrator Training Materials Canadian Motor Vehicle Arbitration Plan www.camvap.ca

Handling the Evidence from Pre-Hearing to Final Reasons, Justice J.I. Laskin ON. C.A. (2002) C.C.A.T.

Conference

The Hearing is Over: Writing Languages in Plain Language, David C. Elliott http://www.davidelliott.ca/

Black, Henry Campbell. Black’s Law Dictionary, Abridged Fifth Edition, Set-Paul, West Publishing Co.,

1983.

Blake, Sara. Administrative Law in Canada, Toronto, Butterworths, 1992.

http://www.lexum.umontreal.ca/

http://www.justice.gov.ab.ca/law/legislative_pubs.aspx


http://www.qp.alberta.ca/index.cfm

http://www.municipalaffairs.alberta.ca/

http://www.bccat.net/

http://www.ciaj-icaj.ca/

http://www.simsgroup.com/

http://www.camvap.ca/





Canadian Bar Association. Report of the Task Force on the Independence of Federal ARBs and Agencies

in Canada, Ottawa, 1990.

Canadian Journal of Administrative Law Practices

Jones and De Villars. Principles of Administrative Law, Toronto, Carswell, 1994.

Law Reform Commission of Canada. Independent Administrative Agencies, Working Paper 25, Ottawa,

Minister of Supply and Services Canada, 1980.

Macaulay, R.W. and Sprague, J.L.H. Practice and Procedure Before ARBs, Toronto, Carswell, 1994.

Reid, Administrative Law Administrative Law: An Overview, document prepared by the Legal Services

Sector of the Department of Justice and modified for use by the National Transportation Agency.

Members’ Handbook, prepared by the Immigration and Refugee Board.

Members’ Orientation Book, prepared by the Canadian Radio-television and Telecommunications

Commission.

Powers and Procedures of ARBs Alberta Law Reform Institute Consultation Memorandum No. 13, Sept

2008 Edmonton.




A User's Guide to Legislation

From Alberta Justice and Solicitor General website.

Statutes of Alberta: annual volumes

Each year the public acts and private acts enacted by the Legislature that year (bills that receive Royal

Assent) are published by the Alberta Queen's Printer in a hard-cover volume. The volume also contains

reference materials. The annual volumes of the Statutes of Alberta are the authoritative source for

interpreting and applying Alberta's acts.

Public acts include entirely new public acts, public amendment acts, repeal acts and appropriation acts.

Private acts are brought forward (or "petitioned") by Members of the Legislative Assembly, and do not

affect the population as a whole.

The annual volume contains:

a table of contents that lists the acts by chapter number

an alphabetical list of acts

public acts enacted in that year

private acts enacted in that year

reference materials.

The first page of each act contains the following information:

the bill number under which the act was introduced in the Legislative Assembly (in the upper left

hand corner)

the title of the act

the chapter number assigned to the act

the date on which the act was given Royal Assent.

Statutes of Alberta: loose-leaf

The Alberta Queen's Printer also publishes a 15-volume loose-leaf consolidation of the public acts,

excluding appropriation acts. These volumes are updated as soon as possible after new acts are enacted or

amendments come into effect. Volumes 1 to 15 consolidate the public acts enacted by the Alberta

Legislature. Volume 15 also contains those amendment acts from the Revised Statutes of Alberta 2000

that are still awaiting proclamation, RSA 2000 Schedules A to D, proclamation tables, and the Table of

Public Statutes (printed on pink paper).

The loose-leaf version is an unofficial consolidation. The original acts, in the hard cover volumes of the

Revised Statutes of Alberta 2000 and the annual Statutes of Alberta, should be consulted for all purposes

of interpreting and applying the law.

The Alberta Gazette Part II

Regulations filed under the Regulations Act, except those exempted from publication under that act, are

published in Part II of The Alberta Gazette within a month of being filed. The Gazette is available from

the Alberta Queen's Printer.

Other Formats


http://www.justice.gov.ab.ca/law/legislative_pubs.aspx#jumpRec2728

http://justice.alberta.ca/programs_services/law/Pages/legislative_pubs.aspx#annual






Alberta Statutes and Regulations are also available in pamphlet form, and on the Alberta Queen's Printer

web site.

How to cite statutes (Acts)

Statutes (Acts) are referred to by their titles. For court and other legal purposes, a complete citation would

consist of the title of the act followed by a reference to the more recent of

the most recent statute revision in which that act was included

the year in which the act was enacted (received Royal Assent)

plus the chapter number of the act.

Entirely new public acts are given alpha-numeric chapter numbers; other acts are numbered Chapter 1, 2,

3 etc.

The statute revision is cited in this form: Revised Statutes of Alberta 2000. This may be abbreviated as

RSA 2000.

Years of enactment are cited in this form: Statutes of Alberta, 2002. This may be abbreviated as SA 2002.

Here are some examples of citations of acts:

Cooperatives Act (SA 2001 cC-28.1);

Hospitals Act (RSA 2000 cH-12);

Public Works Amendment Act, 2002 (SA 2002 c21).

How to cite regulations

A regulation may be cited by its title, or as "Alberta Regulation" or "Alta. Reg." or "AR" followed by its

number, a slash and the last two figures of the calendar year of the filing of the regulation. For example,

the Partnership Regulation may be cited as:

Partnership Regulation, or

Partnership Regulation, Alberta Regulation 276/99, or

Partnership Regulation (Alta. Reg. 276/99), or

Partnership Regulation (AR 276/99)

Beginning with regulations filed in the year 2000, all four figures of the calendar year are used in Alberta

Regulation numbers; for example, Change of Name Regulation (AR 16/2000).

Interpretation Act

Users of the Statutes of Alberta should be aware of the Interpretation Act (RSA 2000 cl-8). It sets out

various presumptions, definitions, and rules of statutory interpretation and construction that apply to all

Alberta acts and regulations. For example, the Interpretation Act contains definitions that apply to words

and phrases used in all acts, except where an act indicates otherwise.





Reference Materials

Reference aids are placed at the end of the annual volume and in the supplement volume of the loose-leaf

statutes. The reference materials included are:

Proclamation Tables - (printed on white paper)

These tables list:

all enactments brought into force by proclamation

unproclaimed public enactments

acts amended by unproclaimed enactments

acts repealed by unproclaimed enactments

public enactments that expire on named dates

public enactments that come into force on named dates.

Table of Public Statutes - (printed on pink paper)

Part 1 of the table shows all acts in the Revised Statutes of Alberta 2000, all amendments to those acts,

and all other public acts and amendments enacted between December 31, 2000 and the date stated in the

first paragraph of the table.

Part 2 of the table shows public acts enacted before December 31, 2000 for which no express repeals have

been found, and which were not consolidated in or repealed by the Revised Statutes of Alberta 2000.

Table of Private Statutes of the Province of Alberta - (annual volume only: printed on blue paper)

The table shows all the private acts, and amendments to them, enacted up to the date printed under the

title of the table.

RSA 2000 Schedules - (loose-leaf statutes)

Schedules A to D to the Revised Statutes of Alberta 2000 are included in the last volume of the loose-leaf

statutes.

Schedule A: Acts Consolidated in RSA 2000

Schedule B: Acts Omitted from and Repealed by RSA 2000

Schedule C: Acts Not Consolidated Nor Repealed by RSA 2000

Schedule D: Table of Concordance

Organization of a Statute (Act)

Preambles

Some acts begin with a preamble. The preamble is part of the act and may be used to interpret the act.




Definitions

Most acts contain a definition section that lists, in alphabetical order, definitions of terms used in the act.

The definition section is usually at the beginning of the act. However, definitions that are restricted in

their application to a section, part, division or other portion of an act may be at the beginning of that

section, part, division or other portion.

Marginal Notes and Section Headers (Side notes)

Marginal notes and section headers (side notes) are not part of the statute and should not be relied on to

interpret the act. They are included only for convenience of reference and may be changed editorially

whenever appropriate.

Sections, Subsections, etc.

Every act is composed of numbered sections, cited as section 1, 2, 3, etc.

many sections are further divided into two or more subsections, cited as subsection (1), (2), (3),

etc.

some sections and subsections contain clauses, cited as clause (a), (b), (c), etc., subclauses, cited

as subclause (i), (ii), (iii), etc.,paragraphs, cited as paragraph (A), (B), (C), etc., and

subparagraphs, cited as subparagraph (I), (II), (III), etc.

Decimal Numbering

The numbering system can be easily understood by regarding each section number as if it were followed

by a decimal point and some zeros that are not shown; that is, section 4 can be thought of as 4.0 or 4.00

etc.

In applying the system, only one decimal place is usually needed, so that between sections 4 (4.0) and 5

(5.0) sections 4.1 to 4.9 can be added (4.10 is not used since it is the same as 4.1), for a total of nine

sections.

By later amendments, up to nine more sections can be added between any two sections by using two

decimal places, for example:

between section 4 and 4.1, sections 4.01 to 4.09 can be added,

between sections 4.1 and 4.2, sections 4.11 to 4.19 can be added, and

between sections 4.9 and 5, sections 4.91 to 4.99 can be added

and in the same manner a further nine sections can be added between any of those sections by using three

decimal places.

If it is necessary to add more than nine sections in the same place at the same time, then some of the

sections are numbered using an additional decimal place.

The same rules apply to adding new subsections, clauses, subclauses and paragraphs, so that

subsections are numbered (1.1) to (1.9),

clauses are numbered (a.1) to (a.9),




subclauses are numbered (i.1) to (i.9),

paragraphs are numbered (A.1) to (A.9), and

subparagraphs are numbered (I.1) to (I.9).

Parts, Divisions

Some acts are divided into numbered parts, cited as Part 1, Part 2, etc. A part may be divided into

divisions cited as Division 1, Division 2, etc.

Transitional Provisions

If an act or provision cannot come into force on an intended day without hardship or confusion occurring,

the act may contain a transitional provision. Transitional provisions are used to provide for the transition

from an earlier act to the act that replaces it, or to phase in how a new or an amending act applies to

persons affected by it. A transitional provision may be included in an act if, for example, certain

provisions of the previous act will apply for a significant period of time or if the provisions may affect

many persons. Transitional provisions are usually located near the end of the act.

Consequential Amendments

Consequential amendments in an act amend other acts that are affected by that act. Consequential

amendments are included in the acts as published in the annual volume.

In the loose-leaf statutes and office consolidations, all amendments are incorporated into the amended

acts. If an act made consequential amendments to other acts, an editorial note to that effect is included in

the consolidated amending act.

Repeal Provisions

Provisions repealing other acts are placed near the end of the act, immediately before the coming into

force section.

Coming Into Force Provisions

The section dealing with the coming into force of an act or of provisions of an act is usually the last

section of the act. If there is no coming into force provision in an act, the Interpretation Act (RSA 2000

cl-8) provides that the act comes into force on the date of Royal Assent. The Royal Assent date is on the

first page of each act in the annual statute volume, following the chapter number.

If an act, or a portion of an act, comes into force in a manner other than by Royal Assent, the last section

of the act will set out the method. The act, or portion of the act, may come into force on proclamation or

on a named future date, or may be deemed to have come into force on a named previous date.

Citations (Historical References)

Each section of a consolidated act is followed by the citation for that section and the citations of any

amendments to that section. Citations do not form part of the act. They are added editorially.




Attached Documents:

1. Complaint Form

2. Notice Types

3. Complaint Process and timeline for a LARB

4. Complaint Process and timeline for a CARB

5. Complaint Process and timeline for the MGB

6. Process for Administrative Clerks




The Assessment Review Board Complaint Form - Front




The Assessment Review Board Complaint Form - Back

Table 1 – Notice Types

Notice Types

Matters for a complaint

s. 460(5) for LARB and

CARB

CARB

res. with 4

or more

units and

non-res.

LARB

res. with 3 or

less units and

farm land

LARB

Tax Notices, not including a property tax notice

Assessment

notice,

incl. suppl.

Assessment

notice,

incl. suppl.

Business tax,

incl. suppl.

(tax notice)

BRZ

(tax notice)

CR levy

(tax notice)

Special tax

(tax notice)

Well Drill

Equip.

(tax notice)

Local

Improv. (tax

notice)

CAP levy

(tax notice)

(a) description of a property or

business Yes Yes Yes Yes Yes Yes Yes Yes Yes

(b) name and mailing address of

an assessed person or taxpayer Yes Yes Yes Yes Yes Yes Yes Yes Yes

(c) an assessment Yes Yes Yes

(s. 374(1))

Yes

(AR89/05)

ref. to

assessed

value

ref. to

asmnt.

ref. to

asmnt.

(d) assessment class (see s. 297(1)) Yes Yes

(e) assessment sub-class (see s.

297(2))

N/A (vacant

only) Yes

(f) “type” of property Yes Yes

(g) “type” of improvement (see s.

284(1)(j)) Yes Yes

(h) school support (responsibility

of municipality) Yes Yes

(i) whether property is assessable

(see s. 298) Yes Yes

Yes

(s. 374.1)

(j) whether property is taxable or

business is exempt from taxation

under Part 10

Yes Yes Yes Yes Yes

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Table 2 – Local Assessment Review Board Timelines

Local Assessment Review Board

(LARB)

Timelines

Residential property,

3 or less dwelling

units,

or farm land

Assessments

Business tax

Assessment

Non-assessment

Matters

on Assessment Notice

Matters

on Tax Notice

Administrative

or

Procedural Matters

Step and Timeline LARB LARB One-member LARB One-member LARB One-member LARB

Assessment or tax notice sent

(a) Number of days for filing a complaint 60 days 30 days 60 days 30 days n/a

Complaint filed

(b) Number of days to provide copy of complaint

to respondent 30 days or less 30 days or less 30 days or less 30 days or less n/a

(c) Soonest hearing date after complaint is filed 35 days 35 days n/a n/a n/a

(d) Number of days before hearing to notify

parties of time and place of hearing 35 days 35 days 15 days 15 days 15 days

(e) Number of days before hearing for

complainant disclosure 21 days 21 days 7 days 7 days 7 days

(f) Number of days before hearing for

respondent disclosure 7 days 7 days 7 days 7 days 7 days

(g) Number of days before hearing for

complainant rebuttal 3 days 3 days n/a n/a n/a

Merit hearing

(h) Issue written decision 30 days 30 days 30 days 30 days 30 days

(i) Send decision 7 days 7 days 7 days 7 days 7 days

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Table 3 – Composite Assessment Review Board Timelines

Composite Assessment Review Board

(CARB)

Timelines

Residential property

and

4 or more dwelling

unit

Assessment

Non-Residential

property

Assessment

Non-assessment

Matters

on Assessment Notice

Administrative

or

Procedural Matters

Step and Timeline CARB CARB One-member CARB One-member CARB

Assessment or tax notice sent

(a) Number of days for filing a complaint 60 days 60 days 60 days n/a

Complaint filed

(b) Number of days to provide copy of complaint to respondent 30 days or less 30 days or less 30 days or less n/a

(c) Soonest hearing date after complaint is filed 70 days 70 days n/a n/a

(d) Number of days before hearing to notify parties of time and

place of hearing 70 days 70 days 15 days 15 days

(e) Number of days before hearing for complainant disclosure 42 days 42 days 7 days 7 days

(f) Number of days before hearing for respondent disclosure 14 days 14 days 7 days 7 days

(g) Number of days before hearing for complainant rebuttal 7 days 7 days n/a n/a

Merit hearing

(h) Issue written decision 30 days 30 days 30 days 30 days

(i) Send decision 7 days 7 days 7 days 7 days

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Municipal Affairs Administrative Law I Page XCVI of 99

Government of Alberta July 2010

Table 4 –Municipal Government Board Timelines

Municipal Government Board

Timelines

Linear Property

Assessment

Non-assessment

Matters

on Linear Property

Assessment Notice

Equalized Assessment

(report of all

equalized

assessments)

Administrative

or

Procedural Matters

Step and Timeline

Assessment notice sent

(j) Number of days for filing a complaint 60 days 60 days 30 days n/a

Complaint filed

(k) Number of days to provide copy of complaint to respondent 30 days or less 30 days or less 7 days or less n/a

(l) Soonest hearing date after complaint is filed 70 days n/a 70 days n/a

(m) Number of days before hearing to notify parties of time and

place of hearing 70 days 15 days 70 days 15 days

(n) Number of days before hearing for complainant disclosure 42 days 7 days 42 days 7 days

(o) Number of days before hearing for respondent disclosure 14 days 7 days 14 days 7 days

(p) Number of days before hearing for complainant rebuttal 7 days n/a 7 days n/a

Merit hearing

(q) Issue written decision 30 days 30 days 30 days 30 days

(r) Send decision 7 days 7 days 7 days 7 days

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Table 5 – Process for Administrative Clerks

Assessment Review Board Clerk / MGB Administrator

Duties and Responsibilities

Complaint is filed Receive and categorize complaint (LARB or CARB)

Notify Municipality / Assessor of complaints Notice to be given within 30 days of receiving complaints.

Contact MGB if complaint is to be heard by a CARB Presiding Officer assigned by MGB

Case management done in cooperation with MGB Administrator

Complaint reviewed for compliance Filed On Time

Content

Standardized Complaint Form complete

Schedule Hearings Length of hearing, one-member board, etc

For CARB complaints, a minimum of 70 days after complaint is filed.

For LARB complaints, a minimum of 35 days after complaint is filed.

Notify parties of hearings For CARB complaints, notify parties of time and location of hearing at least 70 days before the hearing.

For LARB complaints, notify parties of time and place of hearing at least 35 days before the hearing

(currently 14 days)

Review for disclosure process and timelines Based on property type, the disclosure process will follow either the LARB or CARB disclosure

timelines.

Where all parties have consented: The disclosure timelines for LARB may be substituted for the disclosure timelines for CARB, and

conversely, the disclosure timeline for CARB may be substituted for the disclosure timeline for LARB.

Hearing Ensure documents are prepared and ready for board members; room is prepared, record hearing

minutes, or other duties as agreed by the board.

Post hearing Complete and file record of the hearing.

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15th Floor, Commerce Place

10155 102 Street

Edmonton AB T5J 4L4

ISBN 978-1-4601-0377-7 Print

ISBN 978-1-4601-0378-4 Electronic

Administrative Law II Course Manual - Alberta Law II Manual 2013... · MODULE 1 ... Case Arguments...

Documents

Transcript of Administrative Law II Course Manual - Alberta Law II Manual 2013... · MODULE 1 ... Case Arguments...